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Articles 1 - 10 of 10
Full-Text Articles in Law
Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott
Social Facts, Legal Fictions, And The Attribution Of Slave Status: The Puzzle Of Prescription, Rebecca J. Scott
Articles
In case after case, prosecutors, judges and juries therefore still struggle to come up with a definition of slavery, looking for some set of criteria or indicia that will enable them to discern whether the phenomenon they are observing constitutes enslavement. In this definitional effort, contemporary jurists may imagine that in the past, surely the question was simpler: someone either was or was not a slave. However, the existence of a set of laws declaring that persons could be owned as property did not, even in the nineteenth century, answer by itself the question of whether a given person was …
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
Articles
Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: • Iran and United States Continue to Implement Nuclear Deal, Although Disputes Persist • United States Continues to Challenge Chinese Claims in South China Sea; Law of the Sea Tribunal Issues Award Against China in Philippines-China Arbitration • U.S. Navy Report Concludes That Iran’s 2015 Capture of U.S. Sailors Violated International Law • United States Justifies Its Use of Force in Libya Under International and National Law • U.S. Drone Strike Kills Taliban Leader in Pakistan • U.S. Government Releases Casualty Report, Executive Order, and Presidential Policy Guidance Related to Its Counterterrorism Strike Practices • The Department …
Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr
Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr
Articles
In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …
Anti-Incarcerative Remedies For Illegal Conditions Of Confinement, Margo Schlanger
Anti-Incarcerative Remedies For Illegal Conditions Of Confinement, Margo Schlanger
Articles
Opposition to mass incarceration has entered the mainstream. But except in a few states, mass decarceration has not, so far, followed: By the end of 2014 (the last data available), nationwide prison population had shrunk only 3% off its (2009) peak. Jail population, similarly, was down just 5% from its (2008) peak. All told, our current incarceration rate - 7 per 1,000 population - is the same as in 2002, and four times the level in 1970, when American incarceration rates began their rise. Our bloated prisoner population includes many groups of prisoners who are especially likely to face grievous …
Debunking Humphrey's Executor, Daniel A. Crane
Debunking Humphrey's Executor, Daniel A. Crane
Articles
The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …
Commentary On The Emerging Constitutional Indigenous Peoples Land Rights In Tanzania, Daniel Halberstam
Commentary On The Emerging Constitutional Indigenous Peoples Land Rights In Tanzania, Daniel Halberstam
Articles
The pastoralists and hunter-gatherer indigenous peoples in Tanzania continue lobbying their recognition as such and protection of their land rights. This article discusses the extent to which the indigenous peoples are legally recognized and the state of their security of land tenure. With the hindsight of the UN Declaration on the Rights of Indigenous Peoples 2007 and the 2003 Report of the African Commission Working Group of Experts on Indigenous Population, this article probes the emerging indigenous land rights within the broader understating of the minority rights in the Draft Constitution of Tanzania 2014 as well as the Draft Policy …
Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias
Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias
Articles
American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus
Articles
In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …
Building Labor's Constitution, Kate Andrias
Building Labor's Constitution, Kate Andrias
Articles
In the last few years, scholars have sought to revitalize a range of constitutional arguments against mounting economic inequality and in favor of labor rights. They urge contemporary worker movements to lay claim to the Constitution. But worker movements, for the most part, have not done so. This Essay takes seriously that choice. It examines reasons for the absence of constitutional argumentation by contemporary worker movements, particularly the role of courts and legal elites in our constitutional system, and it contends that labor’s ongoing statutory and regulatory reform efforts are essential prerequisites to the development of progressive constitutional labor rights. …