Law Commons^™

Inclusionary Takings Legislation, Gerald S. Dickinson

Articles

This Article proposes an alternative post-Kelo legislative reform effort called “inclusionary takings.” Like inclusionary zoning legislation, inclusionary takings legislation would trigger remedial affordable housing action to mitigate the phenomenon of exclusionary condemnations in dense urban areas and declining suburban localities. An inclusionary takings statute would also mandate that local municipalities and private developers provide affordable housing in new developments benefiting from eminent domain takings. Such a statute may ameliorate the phenomenon of exclusionary condemnations in dense urban areas that displaces low-income families from urban neighborhoods. An inclusionary taking, like inclusionary zoning, in other words, requires affordable housing contributions from developers …

Defining And Closing The Hydraulic Fracturing Governance Gap, Joshua Galperin, Grace Heusner, Allison Sloto

Articles

As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin

Articles

It is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

The Power Of The Public Defender Experience: Learning By Fighting For The Incarcerated And Poor, Patrick C. Brayer

Faculty Works

This Essay discusses how public defender apprenticeships impact law students and help mold their future careers. Brayer discusses the tangible advantages that the apprenticeship imparts on students as well as the transferable skills that students gain. Brayer then analyzes the internal and professional growth of students that participate in this apprenticeship. Brayer situates this growth within the context of Chief Justice John Marshall’s own similar experience, arguing how the public defender experience focuses and matures aspiring lawyers.

Cities, Inclusion And Exactions, Audrey G. Mcfarlane, Randall K. Johnson

Faculty Works

Cities across the country are adapting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction. Drawing from the experience of Baltimore, …

Just Discrimination: Arkansas Parochial Schools And The Defense Of Segregation, Misty Landers

Graduate Theses and Dissertations

This thesis examines the continued segregation of parochial schools in the Little Rock Catholic Diocese after the Supreme Court’s 1954 Brown v. Board of Education ruling. The thesis compares the failure of the parochial schools in Little Rock to integrate to the success of integration in Arkansas’s southern neighbors, St. Louis and New Orleans. In those cities, integration occurred after the appointment of new head prelates who threatened excommunication when confronted with segregationist protests and threats of violence. Bishop Albert Fletcher, the head of the Little Rock Diocese, has been perceived as supportive of integration efforts and aligned with his …

Supreme Court Supremacy In A Time Of Turmoil, Richard Henry Seamon

Articles

Last term's decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system's inadequate response to it. In James, the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney's fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts' well-settled duty to obey the Court's decisions on federal law, this article shows that the duty rests …

Costly Signaling, Pleading, And Settlement, William Hubbard

Public Law and Legal Theory Working Papers

This paper develops a game-theoretic model that explores the use of costly signals in a litigation environment with private information held by the plaintiff. I compare the costly signaling model with the canonical models of settlement through screening (Bebchuk 1984) and settlement signaling (Reinganum and Wilde 1986), and show that the costly signaling model compares favorably to these models along several dimensions, suggesting that it merits further exploration as a tool for studying suit and settlement. Under plausible conditions, costly signaling (rather than other signaling or screening mechanisms) will emerge endogenously in litigation, and its results are more robust to …

Inverted Theories, Lee Anne Fennell, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Separation Of Powers Metatheory, Aziz Huq

Public Law and Legal Theory Working Papers

Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution—a major contribution to theorizing on the separation of powers—provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory—predicates that …

Heterosexuality As A Factor In The Long History Of Women's Sports, Mary Anne Case

Public Law and Legal Theory Working Papers

No abstract provided.

Public Perceptions Of Government Speech, Daniel J. Hemel, Lisa Larrimore Ouellette

Public Law and Legal Theory Working Papers

No abstract provided.

Easy On The Salt: A Qualified Defense Of The Deduction For State And Local Taxes, Daniel J. Hemel

Public Law and Legal Theory Working Papers

Congressional Republicans and Trump administration officials have said that they plan to repeal the deduction for nonbusiness state and local taxes (SALT) as part of a comprehensive tax reform package. This essay critically examines the major arguments for repealing the SALT deduction. Repealing the deduction and using the resulting revenues to reduce federal rates across the board would likely lead to greater tax-induced deadweight loss overall. Repealing the deduction also would distort decisions about the financing of education and health care, which together account for more than half of all state and local government spending. Repeal would further encourage a …

The Restoration Remedy In Private Law, Omri Ben-Shahar, Ariel Porat

Public Law and Legal Theory Working Papers

One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm—measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay damages directly to restore the underlying interest, the impairment of which led to the emotional harm. And to solve the problem of verification—compensating only those who truly suffered the emotional harm—this Essay develops a …

Atlas Nods: The Libertarian Case For A Basic Income, Miranda Perry Fleischer, Daniel J. Hemel

Public Law and Legal Theory Working Papers

Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians—even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?

This Article seeks to answer that question. We first show that a basic safety net is …

Introduction To Evidence And Innovation In Housing Law And Policy, Lee Anne Fennell, Benjamin J. Keys

Public Law and Legal Theory Working Papers

No area of law and policy presents more important and pressing questions, or ones more central to human well-being, than that of housing. Yet academic discourse around housing is too often siloed into separate topical areas and disciplinary approaches, while remaining distanced from the contentious housing policy debates unfolding in communities across the nation. In June 2016, the Kreisman Initiative on Housing Law and Policy at the University of Chicago Law School convened a conference in downtown Chicago with the goal of breaking down these barriers and forging new connections – between different facets of housing law and policy, between …

Partisan Balance With Bite, Brian D. Feinstein, Daniel J. Hemel

Public Law and Legal Theory Working Papers

Dozens of multimember agencies across the federal government are subject to partisan balance requirements, which mandate that no more than a simple majority of agency members may hail from a single party. Administrative law scholars and political scientists have questioned whether these provisions meaningfully affect the ideological composition of federal agencies. In theory, Presidents can comply with these requirements by appointing ideologically sympathetic members of the opposite party once they have filled their quota of same-party appointees (i.e., a Democratic President can appoint liberal Republicans or a Republican President can appoint conservative Democrats). No multiagency study in the past fifty …

Quadratic Voting As An Input To Cost-Benefit Analysis, Jonathan S. Masur

Public Law and Legal Theory Working Papers

No abstract provided.

Presidential Obstruction Of Justice, Daniel J. Hemel, Eric A. Posner

Public Law and Legal Theory Working Papers

Federal obstruction of justice statutes bar anyone from interfering with official legal proceedings based on a “corrupt” motive. But what about the president of the United States? The president is vested with “executive power,” which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the president because if they did they would violate the president’s constitutional power. However, we argue that the obstruction of justice statutes are best interpreted to apply to the president, and that the president obstructs justice when his motive for intervening in an investigation is to …

The People Against The Constitution, Aziz Z. Huq

Public Law and Legal Theory Working Papers

“Populism” as a political phenomenon has returned to public attention, but its implications for public law, and in particular constitutional law, remain poorly understood. This review-essay uses the monograph What is Populism? by Jan-Werner Müller to examine the salience of populism as a distinctive modality of political claim-making to U.S. constitutional law. To that end, I contrast Müller’s definition of populism with alternative accounts, and suggest reasons why constitutional scholars should employ Müller’s. Leveraging that definition, I develop a series of tensions between populism and the observed tenets of liberal constitutional democracy under law in the United States.

Decisionmaking On Multimember Courts: The Assignment Power In The Circuits, Daniel J. Hemel, Kyle Rozema

Public Law and Legal Theory Working Papers

In cases heard by multimember courts, one judge usually has the primary responsibility for assigning the majority opinion. In this article, we investigate whether this “assignment power” affects outcomes on threejudge panels in the U.S. federal circuit courts. To do so, we gather novel data on all circuit court cases published between 1993 and 2007, identifying the judge with primary opinion-assignment responsibility in each one. Under circuit rules, the same judge may have the assignment power on one panel and not on the next, depending on the composition of each panel and the relative seniority of its members. Exploiting between- …

Duterte And His Quixotic War On Drugs, Lowell B. Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

Philippine President Rodrigo Duterte has remained an enduring fodder of international news since he was sworn in as the country's 16th president in June 2016. Despite massive criticisms from within the Philippines and overseas, he seems intent on taking his country down an untrodden, dangerous, lawless and bloody path. The president's relentless campaign to eliminate drugs in the country has resulted in a rapidly rising number of deaths occurring on a daily basis. A little more than six months into the presidency of Rodrigo Duterte, records show that his anti-drug war campaign has resulted in over 7,000 deaths, or an …

In Mexico, Gas Is Fueling The Flames Of Revolt, Luis Gomez Romero

Faculty of Law, Humanities and the Arts - Papers (Archive)

It is already clear that 2017 will be a difficult year for Mexico - and not just because it will (or won't) have to pay for a "big, beautiful wall".

Contested Spaces: We Shall Fight On The Beaches..., Michelle A. Voyer, Natalie Gollan

Faculty of Law, Humanities and the Arts - Papers (Archive)

Picture this. It's a beautiful sunny day. You arrive on the beach, find yourself a nice quiet area away from the crowds and set yourself up for a day of relaxation and fun in the sun. But then a large group arrives and sets themselves up right next to you. They're drinking heavily, swearing loudly and leaving their rubbish in the sand. And things are about to get worse. In the distance you can hear the unmistakable buzz of a jet ski heading for your once-quiet part of the beach. The day is lost. You pack up and head home. …

Mexico's New Plan For Facing Trump: Resistance, Luis Gomez Romero

Faculty of Law, Humanities and the Arts - Papers (Archive)

It's not easy to share a 3,000km border with a superpower.

What Does Donald Trump Think About Drugs?, Luis Gomez Romero

Faculty of Law, Humanities and the Arts - Papers (Archive)

In recent years, many countries - with the conspicuous exception of Indonesia and the Philippines - have been rethinking the international war on drugs. The world, it seems, has grown tired of mass incarceration, militarised law enforcement and endless interdiction of drug shipments that nonetheless keep arriving at borders.

El Chapo, Story Of A Kingpin - Or Why Trump's Plan To Defeat Mexican Cartels Is Doomed To Fail, Luis Gomez Romero

Faculty of Law, Humanities and the Arts - Papers (Archive)

Infamous Mexican drug kingpin Joaquín Archivaldo Guzmán Loera - aka "El Chapo" - currently faces 17 drug trafficking, murder, kidnapping and money laundering charges in the US, accrued over the past quarter-century.

Submission Re: City Of Melbourne's Proposed Activities (Public Amenity And Security) Local Law 2017, Luke J. Mcnamara, Julia Quilter, Tamara Walsh

Faculty of Law, Humanities and the Arts - Papers (Archive)

No abstract provided.

Twitter Diplomacy: How Trump Is Using Social Media To Spur A Crisis With Mexico, Luis Gomez Romero

Faculty of Law, Humanities and the Arts - Papers (Archive)

Six days after taking office, President Donald Trump is facing the first international crisis of his administration. And it's unfolding on Twitter.

Germany's Government-Civil Society Development Cooperation Strategy: The Dangers Of The Middle Of The Road, Susan N. Engel

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Organisation for Economic Cooperation and Development (OECD) has been busy since the late 2000s studying the way aid donors manage their relations with development civil society organisations (CSOs). More than studying these relations, they have made some very detailed suggestions about how CSOs should be organised and how donor governments should fund and otherwise relate to them. This came out of the debate about aid effectiveness, which was formally aimed at improving both donor and recipient processes. Donors have quietly dropped many of the aspects related to improving their own performance and yet a number have created new interventionist …