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Fiduciary Injury and Citizen Enforcement of the Emoluments Clause
Full text linkThe text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.
This Article presents that broader theory. The Article argues that the Emoluments Clause imposes a fiduciary duty on officers of the United States. When that duty is breached, all Americans suffer an undifferentiated injury, which may serve as the basis for a private cause of action to enforce the Clause. Drawing on both the historical and textual context of the Clause, this Article concludes that enforcement of the Emoluments Clause is a tool that the Constitution reserves for “the People” as a means of policing the political branches.
The Article then positions this fiduciary injury into the broader question of standing in constitutional cases. The Supreme Court’s paramount concern in the context of standing in constitutional cases is to avoid separation-of-powers conflicts. That goal is best served by a focus on primary versus collateral injuries, rather than the Court’s current (and unevenly applied) “concrete and particularized” standard. In constitutional cases, a focus on primary injuries is consistent with much of the Court’s existing standing doctrine and offers a more coherent, parsimonious, and elegant approach to standing. More importantly, a focus on primary injuries allows the Court to safeguard separation-of-powers principles while avoiding the absurd results that necessarily follow from the Court’s current posture
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
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Complexity in Property
No full textThis article illuminates the largely misunderstood relationship between complexity and the regulation of property interests Specifically the article presents the complexity thesis a novel explanatory account of the principle of numerus clausus The principle of numerus clausus is an ancient common law rule which prohibits the customization of property interests The complexity thesis holds that the primary function of numerus clausus is to prevent the proliferation of highly idiosyncratic property interests In so doing numerus clausus provides a bulkhead against the overwhelming complexity that would ensue if customized property interests were permitted For the last fifteen years numerus clausus has been the subject of a spirited colloquy in which property theorists of all methodological stripes have sought to unravel some of the mysteries that surround the principle This article carefully engages several prominent explanatory accounts of numerus clausus and demonstrates that while these competing accounts supply a number of important insights about the principle the complexity thesis does a better job of accounting for all of the salient features of the principle without sacrificing coherence or consilience Finally the complexity thesis is especially instructive today as the 2007 collapse of the housing market can largely be traced to a set of basic misapprehensions about the destructive power of complexity in the context of highly alienable interests The complexity thesis demonstrates that standardization serves an essential epistemic function Standardization makes it possible for us to better apprehend risk and thereby avoid catastrophic miscalculations such as those that led to the housing collaps
Gender Rules
Full text linkSex stereotypes are of perennial concern within antidiscrimination law and theory, yet there is widespread disagreement about what constitutes a sex stereotype. This Article enters the debate surrounding the correct understanding of stereotype and posits that the concept is too thin to serve as a criterion for distinguishing discriminatory gender generalizations from non-discriminatory, probabilistic descriptions of behavior. Instead, stereotype is a heuristic that has been used by courts and commentators to crudely capture judgments about the justness of applying sex-respecting rules. In this light, the Article argues that the stereotype heuristic should be abandoned in favor of a rule-centered analysis of sex-respecting generalizations. Arguing that courts and commentators have not objected to gender generalizations because they are descriptively inaccurate (as the stereotype heuristic suggests) but because they also exert unique prescriptive force, the Article provides a new understanding of the theoretical basis for subjecting gender generalizations to antidiscrimination scrutiny
The Law of the Body
Full text linkIn the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially defined categories for resolving the question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot-at any point in our lives- own our own bodies (or its constituent parts), but other people can and do. But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property
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