Law Commons^™

Agrarian Reform And Philippine Political Development, Frede G. Moreno

Frede G Moreno

No abstract provided.

Agrarian Reform And Philippine Political Development Agrarian Reform And Philippine Political Development, Frede G. Moreno, Susana Evangelista Leones

Frede G Moreno

Landownership problem and control of resources remains as a political development issue in the Philippines. Agrarian reform is a necessary condition for agricultural modernization and rural industrialization and the fundamental mooring for global competition. Agrarian Reform has contributed to improvement of the socio-economic conditions of landless farmers and political development of the Philippines in terms of engaging the landless in the process of policy making and distribution of large private landholdings to the landless. Modalities giving peasants a stake in society such as decisive role in agrarian legislations, engaging them in dialogue to resolve agrarian cases, presenting manifesto pinpointing their …

Agrarian Reform And Philippine Political Development, Frede G. Moreno, Susana Evangelista Leones

Frede G Moreno

Landownership problem and control of resources remains as a political development issue in the Philippines. Agrarian reform is a necessary condition for agricultural modernization and rural industrialization and the fundamental mooring for global competition. Agrarian Reform has contributed to improvement of the socio-economic conditions of landless farmers and political development of the Philippines in terms of engaging the landless in the process of policy making and distribution of large private landholdings to the landless. Modalities giving peasants a stake in society such as decisive role in agrarian legislations, engaging them in dialogue to resolve agrarian cases, presenting manifesto pinpointing their …

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

Competing Stories: A Case Study Of The Role Of Narrative Reasoning In Judicial Decisions, Kenneth D. Chestek

Kenneth D. Chestek

Abstract:

Within minutes after President Obama signed into law the Patient Protection and Affordable Care Act (derisively referred to by some as the “Obamacare” law), the lawsuits started flying. Literally dozens of suits were filed all across the country. Some were frivolous, but many others raised serious issues of federalism and the reach of Congress’ power under the Commerce Clause.

Of the initial spate of lawsuits, ultimately five were decided by various trial courts on the merits of the Commerce Clause issue. Three judges found the law constitutional, and two others found it unconstitutional. But since the issue is almost …

The Rise Of U.S. Food Sustainability Litigation, Stephanie Tai

Stephanie Tai

This article provides one of the first critical looks at the interface between the values of the sustainable food movement and its rising use of litigation. In particular, it focuses on two growing areas of food sustainability litigation—challenges to CAFOs and challenges to the use of genetically modified organisms (GMOs) in the food system—chosen because they involve growing sectors of U.S. agriculture over which members of the sustainable food movement have raised significant concerns.

The article begins by describing the sustainable food movement, including how the movement fits in with factors that sociologists use to characterize social movements, as well …

U.S. Trade Policy: Increased Emphasis On Worker Rights, Marisa Anne Pagnattaro

marisa pagnattaro

This paper analyzes the increasing focus on worker rights, including the attempt to balance the interests of domestic and international workers, in U.S. trade policy. Part I reviews selected actions asserted by labor unions over the decade prior to the Obama administration, with particular emphasis on the Bush Administration steel tariffs. Part II analyzes two actions taken in 2009, one halting the NAFTA plan to allow trucks from Mexico into the United States. and a second that placed tariffs on tires imported from China. Part III considers the current CAFTA-DR request for consultations with Guatemala for labor rights violations. Part …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

Is Competition The Solution Or The Problem? An Analysis Of U.S. Mortgage Securitization, Michael N. Simkovic

Michael N Simkovic

This article’s original contribution to the literature about the causes of the U.S. mortgage crisis of the late 2000s is to analyze two important causes that have thus far only been discussed in passing. First, this article provides evidence that fragmentation of the securitization market in the mid-2000s and competition between mortgage securitizers undermined securitizers’ ability to control originators, and that such competition led to a race to the bottom on underwriting standards. Second, this article provides evidence of a shift in market power away from securitizers and toward originators during the mid-2000s, and argues that this shift in power …

Law, Institutions And Corruption Cleanups In Africa, John Mukum Mbaku

JOHN MUKUM MBAKU

SINCE INDEPENDENCE, VIRTUALLY ALL AFRICAN COUNTRIES HAVE suffered and continue to suffer from extremely high rates of bureaucratic corruption. Today, corruption remains one of the most important constraints to social, political and economic development. Despite the efforts made, in several countries, to deal with corruption and other forms of political opportunism (e.g., rent seeking), these phenomena remain entrenched in these countries and continue to constrain entrepreneurship and creation of the wealth that is needed to deal with extremely high rates of poverty and material deprivation. Part of the reason why many African countries have not been able to effectively cleanup …

“You’Re Creating New Categories:” Anglo-American Radical Feminism’S Constitutionalism In The Streets, Yxta M. Murray

Yxta M. Murray

In "You’re Creating New Categories:" Anglo-American Radical Feminism’s Constitutionalism in the Streets, I examine the constitutional meaning of two political protests: The 1968 Miss America protest by New York Radical Women and the 1970 British radical feminist protest of the Miss World competition in London. Using the work of Reva Siegel, Jack Balkin, and Lynda G. Dodd as a foundation for my inquiry into how these social movement protests influenced constitutional culture concerning women's rights, I first engage in historical and social analyses of the protests themselves. In particular, I study the different approaches the U.S. and British feminists had …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

Overcoming Cfius Jitters: A Practical Guide For Understanding The Committee On Foreign Investment In The United States, Margaret L. Merrill

Margaret L Merrill

The U.S. has long been an attractive place for foreign investment. Its reputable government and professional enforcement agencies, strong tradition of protecting private property and vibrant middle-class consumer base makes it a prudent investment choice for many foreign investment entities – both private and public. While the U.S. has long championed a free market ethos, it is not devoid of protectionist bias. Starting in 1988, the Committee on Foreign Investment in the United States (CFIUS) has been charged with monitoring foreign direct investment (FDI) and when necessary recommending that the President block or prohibit FDI transactions that may threaten U.S. …

Reorienting Feminist Strategies Relating To Adult Transactional Sex, Suzanne Bouclin

suzanne bouclin

Feminist-informed policies around transactional sex continue to highlight and reinforce the ontological, epistemological and aesthetic disagreements between abolitionists and sex workers’ rights advocates. In this paper, I examine the Canadian context to provide some geographic and social specificity to such debates occurring through the global West. I review the anchoring concepts of feminist perspectives on the sale of sexual services by adults. I then suggest an intersectional understanding of sex work and deploy it to provide guidelines for addressing feminist concerns around commercial sex that avoid checkmated arguments and binary distinctions that do little to reduce the conditions of oppression …

Saturday Night With Elliot Richardson And Robert Bork: A Case Study In Exemplary Executive Branch Lawyering, Jason S. Harrow

Jason S Harrow

In the wake of both the “torture memos” written by the Bush Administration’s Office of Legal Counsel and the U.S. Attorney scandal that led to the resignation of Attorney General Alberto Gonzalez, a large literature appeared criticizing the performance of high-ranking Bush-era executive branch lawyers. But there is very literature highlighting incidents of good executive branch lawyering — especially under trying circumstances.

In this article, I try to buck this trend by examining the events surrounding the so-called “Saturday Night Massacre”: the extraordinary evening in October of 1973 when President Nixon ordered Attorney General Elliot Richardson to fire Watergate Special …

Loving The Cyber Bomb? The Dangers Of Threat Inflation In Cybersecurity Policy, Jerry Brito, Tate Watkins

Jerry Brito

Over the past two years there has been a steady drumbeat of alarmist rhetoric coming out of Washington about potential catastrophic cyber threats. For example, at a Senate Armed Services Committee hearing last year, Chairman Carl Levin said that “cyberweapons and cyberattacks potentially can be devastating, approaching weapons of mass destruction in their effects.” Proposed responses include increased federal spending on cybersecurity and the regulation of private network security practices.

The rhetoric of “cyber doom” employed by proponents of increased federal intervention, however, lacks clear evidence of a serious threat that can be verified by the public. As a result, …

Remedial Secession: What The Law Should Have Done, From Katanga To Kosovo, Thomas W. Simon

Thomas W Simon

In considering Kosovo’s secessionist claims, the International Court of Justice missed a rare opportunity to make a difference. It should have set forth the grounds for granting secession within international law. This Article does not provide yet another doctrinal analysis. Instead, it takes a normative, exploratory route, laying out what the grounds for secession should be and how they should be adjudicated. It defends a refurbished Remedial Model, which provides a morally and legally justification for secession as a last resort remedy for injustices.

The Remedial Model requires a three step inquiry, one relational and two status determinations. First, does …

Civility In Government Meetings: Balancing First Amendment, Reputational Interests, And Efficiency, Terri R. Day, Erin Bradford

Terri R. Day

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that …

Civility In Government Meetings: Balancing First Amendment, Reputations Intests, And Efficiency, Terri R. Day, Erin Bradford

Terri R. Day

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that …

The President As A Lawmaker: The Misuse Of Presidential Signing Statements Under The Administration Of George W. Bush, Steven Morris

Steven Morris

This Paper discusses the use and abuse of presidential signing statements from the time of the founding up to the present era. This Paper argues that although presidential signing statements are not constitutionally repugnant in and of themselves, the use of a certain type of presidential signing statement, known as a "constitutional objection" signing statement, is in clear violation of the sacrosanct doctrine of separation of powers since it effectively imbues the president with the power to make the law. Through the issuance of a "constitutional objection" signing statement, the president manifests his intention to nullify, modify, or completely disregard …

“Charitable” Discrimination: Why Taxpayers Should Not Have To Fund 501(C)(3) Organizations That Discriminate Against Lgbt Employees, Austin R. Caster

Austin R Caster

Until now, the first amendment protection of religious liberty has allowed—and even publicly funded—discrimination against LGBT employees, but this article argues that Christian Legal Society v. Martinez changes that analysis. According to Bob Jones University v. United States, organizations that base admissions decisions on racial discrimination violate public policy and cannot receive taxpayer funding. Similarly, Christian Legal Society v. Martinez shows us that universities do not have to fund student organizations that discriminate on the basis of sexual orientation. Therefore, because discrimination based on an immutable minority trait bars taxpayer funding in one instance, this article argues it should also …

Why Europe Should Say No To The Proposed Framework Of Economic Governance: A Legal And Policy Analysis In Light Of The Establishment Of The European Stability Mechanism And The Euro Plus Pact, Vasileios Paliouras

Vasileios Paliouras

The eurozone sovereign debt crisis, despite all the pain and suffering that has caused to the peoples of the affected countries of the European periphery, has the potential to serve the purpose of European integration, if the right signals are transmitted to the political establishment of Europe. Clearly, the crisis has challenged the basic premise that underpinned the creation of the Economic and Monetary Union (EMU), namely that coordination of economic policies would be enough to safeguard the consensus over the common currency. During the last year the leaders of eurozone Member States have taken unprecedented action to make up …

The Kennedy-Hoffa Showdown: Why Congressional Investigations Need Greater Powers And Procedural Leeway Than Prosecutions, Nicholas C. Stewart

Nicholas C Stewart

ABSTRACT:

This 9,400-word article uses the feud between Robert Kennedy and Jimmy Hoffa as a case study to examine how and why congressional investigations differ from criminal prosecutions. It begins with a discussion of the 1950s congressional investigation into labor racketeering. Armed with this illustrative example, the article explores the relationship among (1) the purposes of congressional investigations (namely lawmaking), (2) the powers enjoyed by committees to achieve these purposes, and (3) the protections afforded committee witnesses. Highlighting the dangers inherent in congressional investigations, this article concludes that the ultimate goal of passing or amending laws presents unique challenges that …

The Criminalization Of The Proliferation Of Nuclear Weapons: Providing A Statutory Regime To Criminalize And Prosecute Nuclear Weapons Proliferators., Patrick A. Mcdade

Patrick A. McDade

This article suggests that the current nuclear non-proliferation regime is no longer effective due to a failure to disincentivize the leadership and regime elites who make policy decisions regarding nuclear weapons programs. To counter this problem, the article then proposes two international statutory schemes for the criminalization of the proliferation of nuclear weapons. The first proposal is a draft resolution by the United Nations Security Council that would create an international tribunal to investigate and punish acts of nuclear weapons proliferation. The second proposal consists of draft amendments to the Rome Statute of the International Criminal Court that would extend …

Individual Liberty And Self-Determination, Fabio Macioce

Fabio Macioce

In this essay I will try to demonstrate that the principle of self-determination is based on a formal and individualistic view of liberty rights. I also propose a different perspective that takes into account the relationships rather than the individual. I will show how this result can only be achieved through a different ascription of rights to individuals: in particular, I will try to demonstrate 1) that any social practices express specific values​​, 2) that these values ​​are the result of historical and cultural circumstances, 3) that they are subject to an ongoing public debate, and finally 4) that only …

Running On Empty: Municipal Insolvency And Rejection Of Collective Bargaining Agreements In Chapter 9 Bankruptcy, Richard W. Trotter Esq.

Richard W. Trotter Esq.

Abstract: This article conducts an in-depth analysis of the facts and law surrounding the potential modification and rejection of collective bargaining agreements by municipal debtors in Chapter 9 bankruptcy. American municipal governments are in the midst of a widespread financial crisis. Many are facing enormous budget deficits in 2011 and beyond. As a result, the heretofore-unthinkable option of filing for bankruptcy protection pursuant to Chapter 9 of the Federal Bankruptcy Code is becoming increasingly viable. One of the most vital issues presented by this poorly understood chapter of the Bankruptcy Code is if and how would-be municipal debtors can modify …

Property, Liberty, And The Rights Of The Community: Lessons From Munn V.Illinois, Paul Kens Dr.

Paul Kens Dr.

Property, Liberty, and the Rights of the Community:

Lessons from Munn v. Illinois

By Paul Kens

Abstract

When considering the extent to which the United States Constitution places a limit on government regulation of business, today’s historians and constitutional theorists treat the question as a matter of balancing economic liberty or property rights against government power. Moreover, modern scholars commonly maintain that this balancing formula represents the predominant tradition in constitutional history. Tracing it back to the tenants of Jacksonian democracy that emphasized distrust of government, they imply that constitutional history has developed as a straight line: always with an …