Law Commons^™

The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese

All Faculty Scholarship

In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response …

Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy - A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Globalization and the new information economy are putting great stress on western high-wage economies of which Canada is an exemplar. As individuals and together as a society, Canadians are being forced to become more flexible and strategic in adjusting to changing employment opportunities and economic challenges. Meanwhile, governments have shifted from being purveyors of welfare to being supervisors of both markets and decentralized/ privatized public services. Key roles for the government in this new political environment are the sponsorship of mechanisms for autonomous, individual human capital investment as well as for community responses to these emerging economic and social challenges. …

The Domestic Influence Of International Criminal Tribunals: The International Criminal Tribunal For The Former Yugoslavia And The Creation Of The State Court Of Bosnia & Herzegovina, William W. Burke-White

All Faculty Scholarship

International criminal tribunals are often criticized for having minimal influence on the states over which they exercise jurisdiction. This article argues that the International Criminal Tribunal for the Former Yugoslavia has had a far more positive impact on domestic governance in Bosnia & Herzegovina than previously assumed by both the academic and policy communities. The article develops a theoretical model to explain the impact of international criminal tribunals on domestic governance and tests that model against the ICTY¹s influence in Bosnia. More specifically, the article advances the claim that the nature of the tribunal¹s jurisdictional relationship with domestic judicial institutions …

Institutional Alliances And Derivative Legitimacy, Claire R. Kelly

Michigan Journal of International Law

Part I of this Article describes global lawmaking and the legitimacy challenge. It provides a typology of IOs that develop norms. It explains that legitimacy is a subjective belief, but it provides objective paradigms for assessing legitimacy claims. It demonstrates how pursuing legitimacy according to one set of criteria can sacrifice legitimacy claims under another. It also examines the competition among IOs, the push for democratic norms, and the resulting need for stronger legitimacy claims. Part II explains linkage and accommodation and gives specific examples of where these phenomena work to garner more legitimacy for specific organizations and the soft …

Power, Parliament And Prorogation: A Canadian Political Drama, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Rarely have Canadians (or Americans!) been so riveted by political life in Ottawa as during the late days of November and the early days of December, 2008. The nature of this focus on Canada’s Parliament was not the kind of positive energy that surrounded American President-elect Obama’s historic election victory a few weeks before, but rather a negative and nervous energy characterized by disbelief, disgust and surprise. In a time of economic crisis rivaled only by the Great Depression of the 1930s, Canada was being plunged into a political crisis not seen since 1926, when then-Governor General Byng denied then-Prime …

Envisioning The Future Of Aboriginal Health Under The Health Transfer Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Canadian government, and many Aboriginal communities, are committed to formally transferring varying aspects of governance responsibilities from federal hands to Aboriginal ones. These transfers take various forms, from creating Aboriginal political bodies with broad sets of governance powers, as was the case with the Nisga'a Treaty of 2000, to more partial transfers of specific powers or responsibilities, or types of responsibilities. One core transfer area is public health programming, for which there are specific and highly developed initiatives dating back to around 1989. Although it is expected that these initiatives will, overall, have very positive effects for improving the …

Relational Theory And Health Law And Policy, Jennifer Llewellyn, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Relational theory starts from an understanding of human selves as relational. This theory informs some significant current developments in the areas of philosophy, ethics and legal theory that re-envision key concepts including autonomy, equality, rights, justice, memory, trust, judgment and identity. In this paper we introduce relational theory and begin to explore some of its implications for health law and policy. In doing so, we hope to show the relevance of each field to the other and to persuade those interested in health law and policy to take up the challenge to pursue the transformative potential of relational theory through …

Motivational Law , Arnold S. Rosenberg

Cleveland State Law Review

After defining the concept of motivational law and giving several examples in Parts II.A and II.B, I discuss in Part II.C how motivational law fits into theories of law. In Part II.D, I explore the boundaries of motivational law and what it means to say that a law is "motivational." Part III.A examines motivational law as a type of intrinsic social control, and Part III.B explains how motivational law works through moral community-building, naming and shaming, cognitive dissonance and cognitive biases. Part IV.A asks why motivational law often fails, IV.B looks at the equivocal evidence of the efficacy of religious …

Tax Equity, Anthony C. Infanti

Articles

Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on income - as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in …

Tax As Urban Legend, Anthony C. Infanti

Articles

In this essay, I review UC-Berkeley history professor Robin Einhorn's book, American Taxation, American Slavery. In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and colonial taxation, …

Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink

Faculty Scholarship

Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …

Public Law As The Law Of The Res Publica, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein

All Faculty Scholarship

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Polyphonic Stare Decisis: Listening To Non-Article Iii Actors, Kermit Roosevelt Iii

All Faculty Scholarship

This article explores the input that non-Article III actors can and should have in the Supreme Court’s decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.

Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang

All Faculty Scholarship

Estimates of the magnitude of the gains that the world could enjoy by liberalizing international migration indicate that even partial liberalization would not only produce substantial increases in the world’s real income but also improve its distribution. Although the economic effects of immigration on native workers and distributive justice among natives are often advanced as reasons to reduce immigration, these concerns do not provide a sound justification for our restrictive immigration laws. Instead, the appropriate response to concerns about the distribution of income among natives is to increase the progressivity of our tax system. Protectionist immigration policies are not only …

The Complexity Of Modern American Civil Litigation: Curse Or Cure?, Stephen B. Burbank

All Faculty Scholarship

Originally prepared for the 2007 meetings of the Italian Association of Comparative Law, this paper seeks to excavate the roots of procedural complexity in modern American litigation. Proceeding from the view that there is no accepted definition of complex litigation in the United States, the paper discusses five related phenomena that the author regards as consequential: (1) the architecture of modern American lawsuits and the procedural philosophy that architecture reflects, (2) the volume of litigation and the public and private policies, attitudes and arrangements that affect it, (3) the dynamic nature of, and dispersed institutional responsibility for, American law, (4) …

The History Of The New York City Law Department: Fighting For The City By William E. Nelson, Ross Sandler

NYLS Law Review

No abstract provided.

From John F. Kennedy’S 1960 Campaign Speech To Christian Supremacy: Religion In Modern Presidential Politics, Stephen A. Newman

NYLS Law Review

No abstract provided.

Making Effective Rules: The Need For Procedure Theory, Robert G. Bone

Oklahoma Law Review

No abstract provided.

Natural Justice: A Case For Uniform Rigour, Siyuan Chen, Lionel Leo

Research Collection Yong Pung How School Of Law

This note considers if there is a discernible framework in which courts resolve alleged claims of breaches of natural justice. On the one hand, once it has been ascertained that the rules of natural justice apply, the court will look at all the circumstances of the case to determine if there has been any u nfairness. On the other hand, it has been suggested th even assuming the rules of natural justice apply, there can be varying degrees of rigour in which they are enforced, a sliding scale of sorts.

Lawfare And Legal Ethics In Guantánamo, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on the legal profession, focuses on the lawyers – some civilian and some military – who represent detainees at Guantánamo Bay. These include civilian counsel representing Guantánamo prisoners in habeas proceedings, as well as civilian and military defense counsel for those facing trial before military commissions. Using published sources as well as interviews with some of the lawyers, the paper examines the tactics by which the U.S. government has tried to disrupt the effective representation of Guantánamo detainees. In the case of habeas lawyers, whose very presence at Guantánamo is unwelcome by the government, …

Rethinking Subsidiarity In International Human Rights Adjudication, William M. Carter Jr.

Articles

This article suggests that a re-evaluation of the principle of subsidiarity is in order. While I make no sweeping claims that the principle of subsidiarity is always preferable or always undesirable, I do suggest that a close look at the myriad ways in which subsidiarity applies reveals that it may sometimes impede, rather than advance, the cause it purports to serve: namely, achieving universality of human rights. This article identifies situations where subsidiarity is more likely to diminish human rights protections that it is to advance them and suggests that subsidiarity should be abandoned or minimized in such areas.

Prolonged Solitary Confinement And The Constitution, Jules Lobel

Articles

This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Articles

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

The Future Of Social Security: Principles To Guide Reform, 41 J. Marshall L. Rev. 1061 (2008), Kathryn L. Moore

UIC Law Review

No abstract provided.

Reconstructing The Race-Sex Analogy, Serena Mayeri

All Faculty Scholarship

No abstract provided.

Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas

All Faculty Scholarship

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child …

Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii

All Faculty Scholarship

Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.