Law Commons^™

The Killer Idea: How Some Gunslinging Anarchists Held Freedom Of Speech At Gunpoint, Gert A. Van Vugt Msc

Gert A van Vugt MSc

In May 2013, the first all-plastic, 3D printed gun was fired. This paper offers a detailed description of the origins and development of the printable gun. It elucidates the transformation of the principal narrative in the increasing media coverage from circumventing arms regulation to defending free speech, highlighting the role of Defense Distributed and their strategic framing of the printable gun. Finally, the uptake of the latter narrative by early popular and scholarly contributions is discussed. The paper highlights the political impact of narrative formation in debates about regulating 3D printing and the communication of printable designs, and suggests an …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

Evolving Christian Attitudes Towards Personal And National Self-Defense, David B. Kopel

David B Kopel

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries.

Disillusionment over World War I turned many Catholics and Protestants …

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …

Do We Have An Itar Problem: A Review Of The Implications Of Itar And Title Vii On Small Satellite Programs, Jeremy Straub, Joe Vacek

Jeremy Straub

The small satellite space certainly falls within the realm of ITAR considerations. Some programs operate under the (perhaps mistaken) belief that ITAR doesn’t apply to them (or that they will never be caught). Others may assert that they are working under the basic research exemption. Still others have implemented ITAR information and facility access controls. At best, ITAR introduces a level of uncertainty regarding small satellite programs; at worst, it may be a predator lurking in the proverbial ‘tall grass’ waiting to pounce. This paper reviews the current state of ITAR legislation (including efforts to reform and revise the law) …

The Hit: Why The Nfl's Age Requirement Is Anticompetitive, Chris Green

Chris Green

To be eligible for the NFL Draft, a player is required to be three full seasons removed from his high school graduation. This age requirement has been challenged before, most notably in 2004 Clarett v. National Football League but was struck down due to the non-statutory labor exemption which frees the age requirement from antitrust law and scrutiny. This rule has been put in place because the NFL is considered one of the most violent sporting leagues in the world and only the most physically and mentally mature players should be allowed to compete. The rule was collectively bargained for …

When The Claim Hits: Bilateral Investment Treaties And Bounded Rational Learning, Lauge N. Skovgaard Poulsen, Emma Aisbett

Lauge N. Skovgaard Poulsen

Using the international investment regime as its point of departure, the paper introduces notions of bounded rationality to the study of economic diplomacy. Through a multi-method approach, it shows that developing countries often ignored the risks of bilateral investment treaties (BITs) until they themselves became subject to an investment treaty claim. Thus the behavior of developing country governments with regard to the international investment regime is consistent with that observed for individuals in experiments and field studies: they tend to ignore high-impact, low-probability risks if they cannot bring specific ‘vivid’ instances to mind.

¿Acatar O No Acatar El Fallo De La Corte Internacional De Justicia En El Caso Nicaragua V. Colombia?, Andres Barreto

Andres Barreto

Han corrido verdaderos ríos de tinta sobre las implicaciones del fallo proferido por la Corte Internacional de Justicia (CIJ) en el Caso Nicaragua v. Colombia, sin embargo, más allá de los análisis, unos jurídicos y otros políticos, es preciso preguntarse que sigue en el panorama internacional tras la sentencia.

The Dangers Of Diversity: Ethnic Fractionalization And The Rule Of Law, Michael Touchton

Michael Touchton

Research linking ethnic cleavages to economic underdevelopment is a hallmark of recent efforts to explain economic growth. Similarly, the rule of law as a credible commitment to property rights and contract enforcement is also identified with economic development. Rather than treating these factors as rival explanations for economic development around the world, I propose the rule of law as the causal mechanism through which ethnic fractionalization (EF) influences growth in many countries. I argue ethnic diversity negatively impacts the rule of law due to the prevalence of ethnically-based patronage networks in developing countries. Public officials, I argue, face greater incentives …

The Right To Freedom Of Expression And Media Reporting On Criminal Proceedings In Tanzania: Finding The Balance, Joseph Wawa Raphael Futakamba S

Joseph Wawa Raphael Futakamba s

This paper examines the impact of media reporting to crime and criminal court proceeding in Tanzania in the light of exercising the legitimate right to freedom of expression by the press, on one hand and the accused rights to presumption of innocence and fair trial on the other hand. The purpose of the discussion revolves around the effect of prejudicial crime reporting to the criminal suspects/accused and available remedies within the legal system. It also, looks upon the court practices and the law in dealing with interference with the course of justice. The paper also analyses the rights of the …

Gouvernementalité Algorithmique Et Perspectives D'Émancipation : Le Disparate Comme Condition D'Individuation Par La Relation?, Antoinette Rouvroy, Thomas Berns

Antoinette Rouvroy

La gouvernementalité algorithmique se caractérise notamment par le double mouvement suivant : a) l’abandon de toute forme d’« échelle », d’« étalon », de hiérarchie, au profit d’une normativité immanente et évolutive en temps réel, dont émerge un « double statistique » du monde et qui semble faire table rase des anciennes hiérarchies dessinée par l’homme normal ou l’homme moyen ; b) l’évitement de toute confrontation avec les individus dont les occasions de subjectivation se trouvent raréfiées. Ce double mouvement nous paraît le fruit de la focalisation de la statistique contemporaine sur les relations. Nous tentons d’évaluer dans quelle mesure …

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Aaron J Shuler

Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …

Wrongs Against Immigrants' Rights: Why Terminating The Parental Rights Of Deported Immigrants Raises Constitutional And Human Rights Concerns, Rachel C. Zoghlin

Rachel Claire Zoghlin

Since President Barack Obama first took office in January 2009, his administration has made immigration enforcement a top priority. In 2012, the U.S. government spent more money to deport immigrants – $18 billion – than on the FBI, Secret Service, DEA, U.S. Marshal Service and the Bureau of Alcohol, Tobacco, and Firearms combined. Since January 2009, the Obama administration has removed over 2.2 million immigrants. Of the over 211,000 individuals deported between January and June of 2011, nearly 22% (over 46,000) are parents of U.S.-citizen children. One collateral consequence of these deportations is that over 5,100 children have been placed …

Neoliberalism And The Law Reassessing Historical Materialist Analysis Of The Law For The 21st Century, Justin Schwartz

Justin Schwartz

Historical materialism has been called in question by the triumph of neoliberalism and the fall of Communism. I show, by consideration of two examples, the 2008 crisis and recent Supreme Court campaign spending First Amendment jurisprudence, that neoliberalism instead vindicates the explanatory power of (non-mechanical and non-deterministic) historical materialism in accounting for a wide range of recent legal developments in legislation, executive (in)action, and judicial decision-making.

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Global Adversarial Legalism: The Private Regulation Of Fdi As A Species Of Global Administrative Law, Ariel Meyerstein

Ariel Meyerstein, JD, PhD

This article explores the theoretical paradigm I refer to as “global adversarial legalism,” building on Robert Kagan’s description of the American legal system. Adversarial legalism has also been explained as a governance strategy deployed by the relatively weak central governance institutions of the European Union as a means of spreading EU law. It usefully captures the fragmented political authority and relatively weak hierarchical control of the global governance, or lack thereof, of foreign direct investment.

One facet of this global adversarial legalism, already much debated, is the concern that investment arbitration tribunals exercise an overly broad and perhaps illegitimate form …

Wie Doet Wat? Over De Rede Van David Cameron En De Verdeling Van Bevoegdheden Tussen De Europese Unie En De Lidstaten, Jan M. Smits

Jan M Smits

De verdeling van bevoegdheden tussen de Europese Unie en de lidstaten staat sterk in de belangstelling. In deze bijdrage wordt ingegaan op de vraag of meer te zeggen valt over wie wat moet doen in Europa. Onderzocht wordt welke bijdrage juristen, economen en politicologen tot nu toe aan dit debat hebben geleverd. Vervolgens wordt een aanzet gedaan voor de ontwikkeling van een kader dat kan helpen om de vraag naar de optimale bevoegdheidsverdeling te beantwoorden.

Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Tom Ginsburg, Zachary Elkins, Beth Simmons

Tom Ginsburg

This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not …

Getting Your Bell Rung: Analyzing The Concussion Lawsuits Against The National Football League From Former Players, Joshua P. Monroe

Joshua P Monroe

There has been a great and divisive conflict between the National Football League and its former players about head injuries. Former players are claiming negligence by the league in the addressing the issues of head injuries. This paper investigates the argument by both sides in past, present, and possible future litigation, and further explores head injuries. This article explains that the current litigation, while useful, will not succeed because of its obscurity and the presumptions that it makes regarding concussions. This article proposes a new lawsuit that would combine aspects of the Major Tobacco Settlement Agreement of 1998 and the …

Smart Power For Hard Problems: The Role Of Special Operation Forces Strengthening The Rule Of Law And Human Rights In Africa, Kevin H. Govern

Kevin H. Govern

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called “smart power” national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in …

Open Minds: Lessons On Intellectual Property, Innovation And Development From Nigeria, Jeremy De Beer, Chidi Oguamanam

Jeremy de Beer

No abstract provided.

Singapore's Culture War Over Section 377a: Through The Lens Of Public Choice And Multi-Lingual Research, Jianlin Chen

Jianlin Chen

The 2007 debate over the retention of Singapore’s male sodomy law provision set off a vigorous and passionate public debate reminiscent of the U.S.’s culture war. However, the Singapore government’s final decision reflects an interesting compromise. The law was retained, but its moral content severely curtailed with the promise of non-proactive enforcement against private consensual adult activity, the proclamation of accommodating the gay community and the concession of the inborn nature of homosexuality. This article critically examines this episode of culture war in Singapore and explores the political dynamics driving the compromise. Enriching public choice theory on interest group capture, …

Book Review, Tom Ginsburg, Ed., Comparative Constitutional Design, Cameron C. Russell

Cameron C Russell

No abstract provided.

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

The Hit: Why The Nfl's Age Requirement Is Anticompetitive, Chris Green

Chris Green

To be eligible for the NFL Draft, a player is required to be three full seasons removed from his high school graduation. This age requirement has been challenged before, most notably in 2004 Clarett v. National Football League but was struck down due to the non-statutory labor exemption which frees the age requirement from antitrust law and scrutiny. This rule has been put in place because the NFL is considered one of the most violent sporting leagues in the world and only the most physically and mentally mature players should be allowed to compete. The rule was collectively bargained for …

Does Financial Market Development Explain (Or At Least Predict) The Demand For Wealth Management And Private Banking Services In Developing Markets?, Bryane Michael, Christopher Hartwell, Gary Ho

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

How should wealth managers and private bankers find and serve the wealthy – particularly in developing countries? Several banks and consulting firms provide market sizing estimates for the number of high net worth and ultra-high net worth individuals. However, it is still an open question whether financial management services actually create wealth (or increase the number of wealthy persons). How can financial advisors know if, on a macro-level, their service offerings grow their collective assets under management and increase their prospect numbers? In this paper, we find evidence that advanced wealth management and private banking services might help grow a …

The Competition Act Of 2010: What Effect Will The Act Likely Have On The Supply And Prices Of Goods And Services In Malaysia?, Bryane Michael

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

This presentation provides an overview of the likely effects of Malaysia's 2010 Competition Act.

An Evaluation Of Cross-National Measures Of Judicial Independence, Julio Ríos-Figueroa, Jeffrey K. Staton

Julio Ríos-Figueroa

We provide a conceptual map of judicial independence and evaluate the con- tent, construct, and convergent validity of 13 cross-national measures. There is evidence suggesting the validity of extant de facto measures, though their proper use requires attention to correlated patterns of measurement error and missing data. The evidence for the validity of extant de jure measures is weaker. Among other findings, we do not observe a strong and direct link between the rules that allegedly promote judicial independence and independent behavior. The results suggest that while the measurement of both de jure and de facto judicial independence requires a …

Democratic Objection Against Judicial Review Of Legislation. Institutional Design Alternatives And Constitutional Theories, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

This article reviews the argument through which judicial review of legislation approved by popularly elected bodies, based on the authority of judges who are in a position of preeminence on the other branches of government, is contrary to democracy. Taking Jeremy Waldron´s argument as a central reference, the author discusses some of the assumptions on which the democratic objection of judicial review is elaborated. He argues that separating the notion of constitutional supremacy from the idea of judicial supremacy would allow building a model that overcomes the democratic problem. The author reviews some alternatives provided by institutional designs, and analyses …

The Limits Of Debate Or What We Talk About When We Talk About Gender Imbalance On The Bench, Keith Bybee

Keith J. Bybee

What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically …