Digital Commons Network^™

The Dangers Of Press Clause Dicta, Ronnell Andersen Jones

Faculty Scholarship

The United States Supreme Court has engaged in an unusual pattern of excessive dicta in cases involving the press. Indeed, a close examination of such cases reveals that it is one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century. The Court’s opinions in cases involving the media, while almost uniformly reaching conclusions based on other grounds, regularly include language about the constitutional or democratic character, duty, value, or role of the press — language that could be, but ultimately is not, significant to the constitutional conclusion reached. Although scholars …

What The Supreme Court Thinks Of The Press And Why It Matters, Ronnell Andersen Jones

Faculty Scholarship

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging.

This Essay explores this trend, setting forth evidence of the Court’s changing view of the media—from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the …

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

Faculty Scholarship

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held …

The Legal Academy As Dinner Party: A (Short) Manifesto On The Necessity Of Inter-Interdisciplinary Legal Scholarship, Paul Stancil

Faculty Scholarship

This Article explores the need for an increase in inter-interdisciplinary legal scholarship, suggesting that legal scholars from different traditions and backgrounds need to sit down at the same table and start talking to one another. The author presents an argument in favor of an integrated model of legal scholarship in which norms of intellectual modesty and cooperation fuel the development of interdisciplinary work. He develops a functional hierarchy which allows scholars to start with the first, threshold question, then work down to the operational details as they carefully consider our accumulated learning about why and how people actually act. After …

Evil Has A New Name (And A New Narrative): Bernard Madoff, A. Christine Hurt

Faculty Scholarship

No abstract provided.

American Civil Religion: An Idea Whose Time Is Past, Frederick Mark Gedicks

Faculty Scholarship

From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a 'civil religion' that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States.

Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the …

Exercising Passive Personality Jurisdiction Over Combatants: A Theory In Need Of A Political Solution, Eric Talbot Jensen

Faculty Scholarship

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani. As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States …

Emerging Commons And Tragic Institutions, Brigham Daniels

Faculty Scholarship

For the past forty years, scholars have developed an immense literature devoted to understanding and solving the tragedy of the commons. The most prominent solutions to this tragedy have focused on building and maintaining stable institutions. This Article reexamines this foundational literature by exploring the costs of stability. In many cases, far more than is generally recognized, the way we value the commons changes. When values change, stable institutions that once made perfect sense become rigid institutions that block change. This Article explains how institutions most able to solve the tragedy of the commons often cause a tragedy of another …

Important” And “Irreversible” But Maybe Not “Unreviewable”: The Dilemma Of Protecting Defendants’ Rights Through The Collateral Order Doctrine, Kristin B. Gerdy

Faculty Scholarship

This articles addresses the collateral order doctrine beginning with its inception in Cohen v. Beneficial Industrial Loan Corp., and continuing through an overview of theCourt's civil collateral order jurisprudence illustrating the development of the "requirements" for attaining appellate review under the doctrine. It examines the role of "important rights" in the Court's collateral order cases and attempts to determine whether "importance" is an additional requirement of the collateral order test. The author seeks to define what the Court means by an "important" right or issue, and to explain the view that some rights are sufficiently "important" to outweigh costs of …

A Signaling Theory Of Human Rights Compliance, David H. Moore

Faculty Scholarship

No abstract provided.

Justice Or Mercy?–A Personal Note On Defending The Guilty, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Contractual Agreements To Arbitrate Disputes: Waiver Of The Right To Compel Arbitration, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.