Digital Commons Network^™

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

No Harm, No Foul? A Critique Of The Current Legal Framework Dealing With Impermissible Closing Appeals To Racial Bias, Paul Christopher Estaris Torio

Paul Christopher Estaris Torio

No Harm, No Foul? examines the friction that exists between the core legal principles of zealous advocacy and equality in one particular but prominent context: racial appeals in closing arguments. Specifically, the article evaluates the harmless error principle, which underpins the current framework for either upholding or overturning a lower court’s decision on the grounds of improper race-based summations, and its role in exacerbating this friction.

The author argues that because the overall structure of the harmless error test gives attorneys the incentive to use racial appeals in closing argument, perhaps the most influential stage of a trial, the entire …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, although …

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

BETRAYING TRUTH: THE ABUSE OF JOURNALISTIC ETHICS IN MIDDLE EAST REPORTING By Kenneth Lasson Abstract In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has …

Strict In Theory, But Accommodating In Fact?, Ozan O. Varol

Ozan O Varol

No abstract provided.

Legal Theory And The Anthropocene Challenge: The Implications Of Law, Science, And Policy For Weapons Of Mass Destruction And Climate Change, Winston P. Nagan, Judit K. Otvos

Winston P Nagan

No abstract provided.

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Lili Levi

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for …

Looking Into The Crystal Ball—The Jurisprudential Possibilities For Buxton V. City Of Plant City, Brandon Thompson

Brandon M Thompson

The paper addresses what process is due for government employees who have been terminated. It focuses specifically on what opportunity the employee will have for a name-clearing hearing after their job has ended. The central thesis is that the test laid down by the 11th Circuit is open to various interpretations but that courts should be mindful of the rights-granting nature of the process when applying this law.

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Lili Levi

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for …

Restructuring The Labor Market To Democratize The Public Forum, Jessica A. Knouse

Jessica A. Knouse

Restructuring the Labor Market to Democratize the Public Forum makes the provocative argument that the identities we construct in the labor market prevent us from creating a democratic public forum. The labor market, where we spend most of our time as adults, wields tremendous influence over our identities, yet its influences are deeply undemocratic. Employers work to create hierarchy and ideological conformity – through many mechanisms, including sex-based pay scales and stereotypes – rather than to promote equality and ideological diversity. When employer-created hierarchies and ideologies are internalized and reproduced within the public forum, they diminish the possibility of democratic …

Killing Capital Punishment In New Jersey: The First State In Modern History To Repeal Its Death Penalty Statute, Robert Martin

Robert J. Martin

This article examines how opponents of the death penalty were successful in lobbying and eventually achieving statutory repeal of New Jersey’s death penalty statute in December 2007. The primary goal of the article is to offer inspiration and guidance for similar efforts in the thirty-five states that still authorize capital punishment. In reviewing lessons learned from New Jersey, the article demonstrates that abolition proved both difficult and doubtful. Led by a small group of organizers and sympathetic legislators, the advocates of abolition faced multiple challenges. The article focuses special attention on their key strategic decisions: pursuit of both legislation and …

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

David C. Gray

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

David C. Gray

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

A Fair And Implicitly Impartial Jury: An Argument For Administering The Implicit Association Test During Voir Dire, Dale Larson

Dale K Larson

While many refer to jury selection as a science, others—perhaps more accurately—liken the process to voodoo. The jury consulting industry has exploded over the last thirty years, with many attorneys paying large amounts for voir dire for erratic and unpredictable results and a general inability to detect bias accurately in potential jurors. One explanation for these poor results, even when using the latest findings in the scientific jury selection field, is that the tools currently available to attorneys and jury consultants give us only a partial picture of the individuals in question. Currently, voir dire consists of oral questioning and …

Will The Supreme Court Send The Vra’S Biggest Sunset Provision Into The Sunset?: Northwest Austin Municipal Utility District Number One And The 2006 Reauthorization Of Section Five Of The Voting Rights Act, Cameron Eubanks

Cameron W Eubanks

The D.C. Circuit correctly decided Northwest Austin Municipal Utility District Number One v. Mukasey. The court subjected the 2006 reauthorization of § 5 of the Voting Rights Act to the rational and appropriate test announced in South Carolina v. Katzenbach. Under this test the court found that Congress had a rational basis to extend § 5 based on evidence of continued racial discrimination in voting. On review, the Supreme Court will uphold the § 5 reauthorization in spite of the congruent and proportional test announced in City of Boerne v. Flores which is used to review enactments passed pursuant to …

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

An Identity Crisis Of International Organizations, Sungjoon Cho

Sungjoon Cho

An Identity Crisis of International Organizations

Abstract

International organizations (IOs) are ubiquitous. More than two hundred IOs touch our everyday lives, ranging banking to flu-shots. However, conventional political scientists seldom pay sufficient attention to IOs which they thoroughly deserve given their contemporary prominence. Because conventional international relations (IR) theories consider IOs as mere passive machineries, they hardly offer a satisfactory explanation on a distinctive mode of IOs’ institutional dynamic, in which a specific IO, as a separate and autonomous organic entity, grows, evolves and eventually makes sense of its own existence. This Essay offers a novel perspective which attempts to …

Trading Places: Securities Regulation, Market Crisis, And Network Risk, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

The rising power of traders has fundamentally transformed financial market networks and risks. Further, the increased complexity of traded securities and trading strategies within financial networks has magnified shortcomings of existing industry risk management practices as well as dominant regulatory regimes. Financial markets are ultimately places where people trade. Broader social and technological changes have altered the nature of trading activities in financial markets. Innovations in technology, financial instruments, and trading strategies have increased financial market efficiency but have also transformed sources of financial market risks. Financial market networks heighten the need for fundamental rethinking of financial market regulation and …

All The Wild Possibilities: Technology That Attacks Barriers To Access To Justice, Ronald Staudt

Ronald W Staudt

No abstract provided.

Educating Lawyers For The Global Economy: National Challenges, Carole Silver

Carole Silver

This essay addresses the challenge of educating law students to work in an increasingly global context. For students enrolled in United States law school, insight into the ways in which globalization matters can be drawn from the structural approaches to globalization of US-based law firms. These firms pursue their international practices by integrating lawyers educated and licensed in the firm’s home country (the US) and in the host jurisdictions in which the firm has offices. As a result, the success of the firm in its international practice depends upon the ability of its lawyers to develop strong and effective cross-national …

Between Diffusion And Distinctiveness In Globalization: U.S. Law Firms Go Glocal, Carole Silver

Carole Silver

No abstract provided.

Understanding The Prop 8 Litigation: The Scope Of Direct Democracy And Role Of Judicial Scrutiny, Ronald Steiner

Ronald L. Steiner

Once the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are …

The Science And Politics Of Ecological Risk: Bioinvasions Policies In The Us And Australia., Zdravka Tzankova

Zdravka Tzankova

The US and Australia – western democracies with similar histories of public awareness on environmental issues and broadly comparable records of policy and regulatory action to safeguard environmental quality – have responded differently to one of the newest and most significant threats to marine bioidiversity: that of biological invasions mediated by the ballast water of commercial shipping. Each country has framed the same invasion risks differently for the purposes of policy and regulation: Australia has decided to use a more narrowly circumscribed, target-species-based approach whereas US policy and regulation takes a more comprehensive and precautionary approach. These somewhat surprising national …

Sprawl In Europe And America, Michael E. Lewyn

Michael E Lewyn

Rebuts the "Inevitability Theory of Sprawl"- the common argument that anti-sprawl policies would be futile in the United States because sprawl has grown even in Europe. Although Europeans are far more likely to travel on foot, bike or public transit than Americans, some commentators argue that these realities are irrelevant because European cities are trending towards sprawl- that is, that Europeans are far more likely to live in suburbs and drive to work than they once did.

This article argues that the European "trend to sprawl" is in the process of reversing itself. Over the past decade, some European cities …

A Commentary On The Old Saw That Same-Sex Marriage Threatens Civilization, Ronald L. Steiner

Ronald L. Steiner

Discussions of same-sex marriage frequently entertain the notion that civilization is somehow at stake were a society to award legal sanction to it, and to gay rights more generally. Typically, those who express concern for negative civilizational consequences have in mind Western civilization, and more specifically Christian civilization. This civilizational concern will often be amplified by the implication that opposite-sex, or opposite-sex monogamous marriage is a timeless human universal. Any other marital regime is presumed to be an aberration, most likely the result of grave moral depravity of a sort supposedly facilitated by the modern rights-based society. This chapter subjects …

Wealth V. Democracy: The Unfulfilled Promise Of The Twenty-Fourth Amendment, David A. Schultz

David A Schultz

The adoption of the Twenty-Fourth Amendment banning poll taxes in federal elections was intended to protect franchise rights and increase voter turnout. However, since its adoption and initial use in Harman v. Forssenius, it has yet to be successfully invoked to invalidate any practice, most recently voter photo IDs. This article seeks to resurrect the Twenty-Fourth Amendment and to make the case for a broader interpretation of it. Specifically, the Article seeks to disconnect the poll tax from a narrow reading of its legacy during the Jim Crow era when its primary purpose was to disenfranchise African-Americans. Instead, the poll …

How Prosecutor Elections Fail Us, Ronald F. Wright

Ronald F. Wright

There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work? There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local …

Anti-Snitching Norms And Loyalty, Bret Asbury

Bret Asbury

In recent years a troubling trend has emerged within a number of poor, black communities. Termed “Stop Snitching,” it has manifested itself in the form community members’ refusing to cooperate with police investigations of community crimes. The result of this widespread refusal to cooperate has been a reduced number of crimes solved within these communities; without cooperating witnesses, it has proven exceedingly difficult for police to make criminal cases. Reactions to Stop Snitching have taken two predominant forms, both of which are mistaken. The first, most often attributed to law enforcement officers, is contempt. To them, community members who do …