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Articles 1 - 13 of 13
Full-Text Articles in Law
Private Property, Development And Freedom, Steven J. Eagle
Private Property, Development And Freedom, Steven J. Eagle
George Mason University School of Law Working Papers Series
The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.
Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns
Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns
George Mason University School of Law Working Papers Series
In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion …
Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller
Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller
Public Law and Legal Theory Papers
We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" -- fact-based and law-based determinations made during the sentencing phase -- to maximize the judges' sentencing preferences subject to the Guideline’s constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the …
Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller
Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller
Public Law and Legal Theory Papers
Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …
Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller
Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller
Law and Economics Papers
Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …
What Is Legal Doctrine, Emerson Tiller, Frank B. Cross
What Is Legal Doctrine, Emerson Tiller, Frank B. Cross
Public Law and Legal Theory Papers
Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others’ efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe …
Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane
Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane
The Ohio State University Moritz College of Law Working Paper Series
Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a …
Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott
Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott
The Ohio State University Moritz College of Law Working Paper Series
We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …
Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt
Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt
The Ohio State University Moritz College of Law Working Paper Series
Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit.
Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan
Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan
Rutgers Law School (Newark) Faculty Papers
This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial, (2) Separately measuring Social Security’s long-term balance is inappropriate and misleading, (3) The methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …
The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji
The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji
The Ohio State University Moritz College of Law Working Paper Series
The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous “hanging chad” punch card. Yet the introduction of paperless technology, especially electronic “touchscreen” machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has …
Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney
Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney
The Ohio State University Moritz College of Law Working Paper Series
This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the …
What Is Fiscal Responsibility? Long-Term Deficits, Generational Accounting, And Capital Budgeting, Neil H. Buchanan
What Is Fiscal Responsibility? Long-Term Deficits, Generational Accounting, And Capital Budgeting, Neil H. Buchanan
Rutgers Law School (Newark) Faculty Papers
This article assesses three basic approaches to assessing the future effects of the government’s fiscal policies: traditional measures of the deficit, measures associated with Generational Accounting, and measures derived from applying Capital Budgeting to the federal accounts. I conclude that Capital Budgeting is the best of the three approaches and that Generational Accounting is the least helpful. Acknowledging that there might be some value in learning what we can from a variety of approaches to analyzing fiscal policy, I nevertheless conclude that Generational Accounting is actually a misleading or--at best--empty measure of future fiscal developments. The best approach to providing …