Law Commons^™

Meeting The Need: Minnesota's Collaborative Model To Deliver Law Student Public Service, Susan J. Curry

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The European Union's Common Foreign And Security Policy: Emerging From The U.S. Shadow, Elizabeth Duquette

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The Human Rights Of The Mentally Disabled: Can European Union Law Help?, Elizabeth Duquette

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The Irrelevance Of Constitutional Amendments, David A. Strauss

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Article V of the Constitution specifies how the Constitution may be amended. Notwithstanding all the attention that constitutional amendments receive, however, our constitutional order would look little different if a formal amendment process did not exist. At least since the first few decades of the Republic, constitutional amendments have not been an important means by which the Constitution, in practice, has changed. Many changes have come about without amendments. In some instances, even though amendments were rejected, the law changed in the way the failed amendments sought. Several amendments that were thought to be important in fact had little effect …

The Failure Of Disclosure As An Approach To Shelters, David A. Weisbach

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Employment And Labor Law Reform In New Zealand Lecture, Richard A. Epstein

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When Courts And Politics Collide: Mongolia's Constitutional Crisis, Tom Ginsburg, Gombosuren Ganzorig

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Money And Judges In The Law Of The Medieval Church, Richard H. Helmholz

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A New Executive Order For Improving Federal Regulation - Deeper And Wider Cost-Benefit Analysis, Cass R. Sunstein, Robert W. Hahn

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For over two decades, federal agencies have been required to analyze the benefits and costs of significant regulatory actions and to show that the benefits justify the costs. But the regulatory state continues to suffer from significant problems, including poor priority-setting, unintended adverse side-effects, and, on occasion, high costs for low benefits. In many cases, agencies do not offer an adequate account of either costs or benefits, and hence the commitment to cost-benefit balancing is not implemented in practice. A major current task is to ensure a deeper and wider commitment to cost-benefit analysis, properly understood. We explain how this …

Conjunction And Aggregation, Saul Levmore

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Law And The Emotions, Eric A. Posner

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Comment On Means Testing Consumer Bankruptcy By Jean Braucher, Eric A. Posner

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'In Such Manner As The Legislature Thereof May Direct': The Outcome In Bush V Gore Defended, Richard A. Epstein

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Consent, Not Power, As The Basis Of Jurisdiction Frontiers Of Jurisdiction, Richard A. Epstein

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Introduction To Idaho Law Review 2001 Symposium, D. Benjamin Beard

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Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker

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Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

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In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

The Liberal Commons, Hanoch Dagan, Michael A. Heller

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Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. …

'Suitable Targets'? Parallels And Connections Between 'Hate Crimes' And 'Driving While Black', Lu-In Wang

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While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied racial profiling reveals striking similarities and connections between these two practices. In particular, both hate crimes and racial profiling tend to be condemned only at extremes, in situations where they appear to be irrational and excessive, but overlooked in cases where they seem logical or are expected. The tendency to see only the most extreme cases as problematic, however, fails to recognize that …

Kyllo V. United States And The Partial Ascendance Of Justice Scalia's Fourth Amendment, Richard Henry Seamon

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What Hath Congress Wrought: E-Sign, The Ueta, And The Question Of Presumption, D. Benjamin Beard

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Economics V. Equity Ii: The European Experience, Stephen M. Johnson

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Lawmakers in the European Union and its member states, like their counterparts in the United States, increasingly are using economic tools to protect the environment while reducing their focus on command and control regulation. The reliance on economic approaches to environmental protection may disproportionately impact low income and minority communities. Although evidence of environmental injustice in Europe is not as strong as in the United States, several recent studies demonstrate that traditional environmental protection measures in Europe have disproportionately funneled pollution to low income communities. Economic-based environmental measures can only exacerbate that trend.

Federal Regulation Of Isolated Wetlands After Swancc, Stephen M. Johnson

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This past January the U.S. Supreme Court held that the Clean Water Act (CWA) did not authorize the federal government to prohibit a landfill operator from filling isolated ponds on its property merely because the ponds were used as habitat by migratory birds. The National Association of Home Builders claimed that the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) was "a major legal victory for home builders and other private property owners." Critics of the SWANCC decision argued that it jeopardizes "perhaps a fifth of the water bodies in the United …

Private Plaintiffs, Public Rights: Article Ii And Environmental Citizen Suits, Stephen M. Johnson

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This Article will focus on the Take Care Clause of Article II, the most serious of the Article II challenges to the environmental citizen suit provisions. Justice Scalia and legal commentators have argued that Article II prohibits a citizen from suing to enforce federal laws unless the citizen has suffered a concrete and personal ("individuated") injury as a result of the action that he is challenging. Professor Cass Sunstein and others have dissented, and have suggested that Congress can authorize citizens to sue to enforce federal laws even when the citizens have not suffered individuated injuries.

The first Part of …

Women's International Tribunal On Japanese Military Sexual Slavery, Christine M. Chinkin

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From December 8 to 12,2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading high-ranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s.

The immediate background to the tribunal's establishment was a series of events commencing in 1988 when the women's movement in the Republic of Korea began to learn of the research of …

Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz

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Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …

The U.S. Treasury's Subpart F Report: Plus Ça Change, Plus C'Est La Même Chose?, Reuven S. Avi-Yonah

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On 29 December 2000, the U.S. Treasury Department released its long-awaited study of Subpart F, entitled “The Deferral of Income Earned through U.S. Controlled Foreign Corporations." This study was commenced in the aftermath of the controversy that ensued from the issuance and subsequent withdrawal of Notice 98-11. The study was originally expected to be issued in 1999 in response to the report published that year by the National Foreign Trade Council, which advocated significant changes in Subpart F. The Treasury Study’s delayed issuance at the end of the Clinton Administration means that it only has (at best) persuasive force for …

Gender Matters: Teaching A Reasonable Woman Standard In Personal Injury Law, Margo Schlanger

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Reasonable care is, of course, a concept central to any torts class. But what is it? One very standard doctrinal move is to conceptualize reasonable care as that care shown by a "reasonable person" under like circumstances. The next step, logically, is to visualize this reasonable person. Visualization requires some important choices. For example, is the reasonable person old or young? Disabled or not? These are two questions that all the casebooks I have consulted discuss. But, oddly, no casebook of which I am aware deals with the trait that nearly invariably figures in our description of people: sex. If …

Myths And Facts About Affirmative Action, Richard O. Lempert, David L. Chambers, Terry K. Adams

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The case against affirmative action in admissions to institutions of higher education is based on the moral attractiveness of colorblind decision making and buttressed by a sense that such programs are not just unfair but pointless. Their intended beneficiaries, the argument goes, are put in situations in which they are unable to compete with whites and not only perform poorly but are destructively demoralized in the process. Common to arguments against affirmative action in admissions is a belief that minorities advantaged by it displace whites who are more deserving of admission because they have accomplished more, can better benefit from …

Blame It On The Cybersquatters: How Congress Partially Ends The Circus Among The Circuits With The Anticybersquatting Consumer Protection Act?, Xuan-Thao Nguyen

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Congress blamed the cybersquatters for the need to pass another trademark cyberlaw. Congress enacted the Anticybersquatting Consumer Protection Act (“ACPA”) on November 29, 1999. The ACPA aimed to protect consumers and businesses, to promote the growth of electronic commerce, and to provide clarity in the law for trademark owners by prohibiting cybersquatting activities on the Internet. Prior to the enactment of the ACPA, the Federal Trademark Dilution Act (“FTDA”), which was passed by Congress in 1995 and became effective on January 16, 1996, was hailed as a powerful tool to combat cybersquatters on the Internet. That presumed powerful tool turned …