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Regulation For The Sake Of Appearance, Adam M. Samaha

Coase-Sandor Working Paper Series in Law and Economics

Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …

Regulation For The Sake Of Appearance, Adam M. Samaha

Public Law and Legal Theory Working Papers

Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …

Reconstruction And The Transformation Of Jury Nullification, Jonathan Bressler

University of Chicago Law Review

More than a century ago, the Supreme Court, invoking antebellum judicial precedent, held that juries no longer have the right to "nullify" — that is, to refuse to apply the law as given by the court. Today, however, in assessing the constitutionally protected right to criminal jury trial, the Supreme Court has emphasized originalism, delineating the right's current boundaries by the Founding-era understanding of it. Relying on this Supreme Court jurisprudence, scholars and several federal judges have recently concluded that because Founding-era juries had the right to nullify, the right was beyond the authority of nineteenth-century judges to curtail and …

Lessons From The Past: How The Antebellum Fugitive Slave Debate Informs State Enforcement Of Federal Immigration Law, James A. Kraehenbuehl

University of Chicago Law Review

No abstract provided.

Keynote: The Crisis And Criminal Justice, Bernard E. Harcourt

Articles

No abstract provided.

Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares

University of Chicago Law Review

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches—namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modern policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question …

The Church Abuse Scandal: Processing The Pope Before The International Criminal Court, Benjamin David Landry

Chicago Journal of International Law

In the early 2000s, the Catholic Church was revealed to have been involved in a pattern of sexual abuse of children. The Church's internal policies allowed members to cover up the abuse by swearing victims to secrecy and refusing to report the abuse to authorities. This routine arguably enabled further abuse by providing abusers with continued access to children. Due, in part, to the hierarchical structure of the Church, commentators argued for the prosecution of Church leadership. Commentators focused on Cardinal Joseph Ratinger, now Pope Benedict XT7, who was, from 1971 to his elevation to the Holy See in 2005, …

Weak-Form Judicial Review And American Exceptionalism, Rosalind Dixon

Public Law and Legal Theory Working Papers

Recent Commonwealth rights charters, various scholars have argued, represent a new "weaker" model of constitutional rights protection than the U.S. constitutional model: unlike the U.S. Bill of Rights, they give legislatures broad formal power to override rights, and therefore also court decisions. The article argues, however, that in practice such powers have rarely if ever been used by Commonwealth legislatures, and therefore, that if judicial review is in fact weaker in Commonwealth countries, compared to the U.S., it is only because Commonwealth courts have been more willing than the U.S. Supreme Court to uphold ordinary legislative attempts to override court …

The Law Of Religious Liberty In A Tolerant Society, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

American Policing At A Crossroads, Tom R. Tyler, Stephen J. Schulhofer, Aziz Huq

Public Law and Legal Theory Working Papers

As victimization rates have fallen, public preoccupation with policing and its crime control impact has receded. Terrorism has become the new focal point of concern. But satisfaction with ordinary police practices hides deep problems. The time is therefore ripe for rethinking the assumptions that have guided American police for most of the past two decades. This essay proposes an empirically grounded shift to what we call a procedural justice model of policing. When law enforcement moves toward this approach, it can be more effective, at lower cost and without the negative side effects that currently hamper responses to terrorism and …

Mechanisms For Eliciting Cooperation In Counter-Terrorism Policing: Evidence From The United Kingdom, Tom R. Tyler, Stephen J. Schulhofer, Aziz Huq

Public Law and Legal Theory Working Papers

This study examines the effects of counterterrorism policing tactics on public cooperation amongst Muslim communities in London, U.K. It tests a procedural justice model developed in the context of studying crime control in the United States. The study reports results of a randomsample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the choice of policing tactics predict the willingness to cooperate …

The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq

Public Law and Legal Theory Working Papers

A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a …

Why Does The Public Cooperate With Law Enforcement? The Influence Of The Purposes And Targets Of Policing, Tom R. Tyler, Stephen J. Schulhofer, Aziz Huq

Public Law and Legal Theory Working Papers

This study addresses the extension of the “procedural justice” model for understanding public cooperation with law enforcement to new policing contexts and new minority populations. The study draws on four recent surveys of public reactions to policing ag

Detention And Deportation With Inadequate Due Process: The Devastating Consequences Of Juvenile Involvement With Law Enforcement For Immigrant Youth, Elizabeth Frankel

Articles

No abstract provided.

Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares

Articles

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches-namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question …

Regulation For The Sake Of Appearance, Adam M. Samaha

Articles

Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …

Failing Juvenile Courts And What Lawyers And Judges Can Do About It, Emily Buss

Articles

No abstract provided.

The Constitutionality Of Proposition 8, Richard A. Epstein

Articles

No abstract provided.

Rethinking The Interest-Convergence Thesis, Justin Driver

Articles

No abstract provided.

The Signaling Function Of Religious Speech In Domestic Counterterrorism, Aziz Huq

Articles

A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a …

The Political Path Of Detention Policy, Aziz Huq

Articles

No abstract provided.

Executive Power And The Discipline Of History (Reviewing Crisis And Command: The History Of Executive Power From George Washington To George W. Bush By John Yoo), Julian Davis Mortenson

University of Chicago Law Review

No abstract provided.

Joint Intentions To Commit International Crimes, Jens David Ohlin

Chicago Journal of International Law

The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise JCE) doctrine applied by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the co-perpetration doctrine applied by the International Criminal Court (ICC), which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in …