Law Commons^™

Capital Sentencing For Children In Virginia In The Wake Of Miller V. Alabama And Montgomery V. Louisiana, Julie Ellen Mcconnell

Law Faculty Publications

Recent United States Supreme Court decisions have declared it unconstitutional to sentence a juvenile to mandatory life in prison without an opportunity for parole. Virginia, a state that abolished parole in 1995, has yet to recognize the federally mandated prohibition against disproportionate punishment imposed on juveniles, particularly in cases where the mandatory minimum sentence is life without parole. This article proposes the General Assembly should amend current laws that reflect the unconstitutionality of these statutes as applied to juveniles.

Legal Origin Theory [Book Review], Dana Neacsu

Law Faculty Publications

In this volume, Simon Deakin, Professor of Law at the University of Cambridge and Katharina Pistor, the Michael I Sovem Professor of Law at Columbia Law School, considered the merits of Legal Origin Theory (LOT) in three fields of inquiry: the study of comparative law, the analysis of the relation between law and markets, and the understanding of the role of legal systems in social ordering. In their succinct and provocative introduction, Deakin and Pistor discuss the evolution of this legal theory without shying away from its controversial nature.

Securing The Rule Of Law Through Interpretive Pluralism: An Argument From Comparative Law, Richard Stith

Law Faculty Publications

Can law rule? For law to rule, it must be enforced. But when law is enforced, not it but its enforcers may rule. To bind those enforcers firmly to the law, they, too, would have to be subjected not only to law but also to a still stronger force—which itself may then be lawless. The very effort to secure the rule of law appears to lead instead to ever more powerful human rulers.

Put another way: If we abolish the police and the courts, in order to leave people truly “not under man but under God and the law,”1 we …

Rethinking Intervention In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

Intervention in Public Law Litigation: The Environmental Paradigm (Environmental Paradigm) substantially enhances understanding of intervention in federal environmental disputes. These controversies are a critical type of modern civil lawsuit and perhaps constitute the quintessential form of public law litigation. Professor Peter Appel comprehensively reviews the lengthy history of the intervention mechanism, scrutinizes the substantial 1966 revision of Federal Rule of Civil Procedure 24, and closely examines the phenomenon of public law litigation and intervention in it.

Professor Appel finds that federal district court judges liberally grant requests to intervene in these cases, although he asserts that some legal scholars have …

Reviving Participant Compensation, Carl W. Tobias

Law Faculty Publications

Over the last quarter century, Congress has clearly recognized the importance of expanding public participation in federal administrative agency proceedings. It has expressly required that many agencies solicit citizen input and facilitate active public involvement in administrative processes while commanding governmental officials to consider thoroughly in their decisionmaking the views of all interests that might be affected. Congress has attempted to develop some mechanisms for promoting increased citizen participation in agency processes, but the legislative branch has been relatively unsuccessful in actually enhancing public involvement. Because citizen participants, such as public interest groups or individual consumers, have comparatively few resources …

An Independent Public Law, Carl W. Tobias

Law Faculty Publications

This Article analyzes the application of numerous Federal Rules in public law litigation to show how the resurrection of private law approaches and hostility toward public interest litigants serves to disadvantage public interest litigants. The assessment is intended to discourage such future enforcement of the Federal Rules and analogous judicial treatment in other areas of public law. The Article is also meant to foster greater appreciation of public law and the articulation of a larger complement of public law principles so as to facilitate the growth of an independent public law.

Public Law Litigation And The Federal Rules Of Civil Procedure, Carl W. Tobias

Law Faculty Publications

The public interest litigant is no longer a nascent phenomenon in American jurisprudence. Born of the need of large numbers of people who individually lack the economic wherewithal or the logistical capacity to vindicate important social values or their own specific interests through the courts, these litigants now participate actively in much federal civil litigation: public law litigation. Despite the pervasive presence of public interest litigants, the federal judiciary has accorded them a mixed reception, particularly when applying the Federal Rules of Civil Procedure. Many federal courts have applied numerous Rules in ways that disadvantage public interest litigants, especially in …

Rule 19 And The Public Rights Exception To Party Joinder, Carl W. Tobias

Law Faculty Publications

The increasing number of "public interest" lawsuits suggests that federal courts increasingly will confront difficult party joinder questions posed by such litigation. These problems arise because entities not involved in the litigation may have interests that may be adversely affected by the litigation. The joinder issue presented by such cases is whether rule 19 of the Federal Rules of Civil Procedure requires that the suit be dismissed or whether the litigation can continue without joinder of the absent entities. Numerous courts have dealt with the question by creating a 'public rights exception," which permits the litigation to continue even without …