Law Commons^™

Judicial Response Or Litigant Strategy: Examining The Success Of The U.S. Solicitor General, Jeff L. Yates, Damon Cann, Brent Boyea

Jeff L Yates

In political science the well-known “Attitudinal Model” of legal decision making dictates that judges’ sincere policy preferences drive legal outcomes. In contrast, the celebrated “Selection Hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose to settle cases in which legal outcomes can be readily predicted in the name of efficiency. Thus, judges end up adjudicating a non-random set of cases which, in the typical situation, should not lend themselves to ideological decision making. From this perspective, the influence of Supreme Court justices’ ideological preferences on outcomes …

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 …

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 …

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 …

The Zionist Model As An Ironically Workable Diplomatic Strategy For Post-Mubarak Egypt, Benjamin L. Zeskind

Benjamin L Zeskind

The fundamental question for post-Mubarak Egypt, and central focus of this comment, is whether the 2011 revolution will retune Egypt as a transcending advocate of democratic principles for countries undergoing similar transformations; or lead Egypt down the theologically repressive path toward failed statehood. Within the context of this question, this article further examines the interplay between the shortcomings of international human rights law, former President Hosni Mubarak’s politically oppressive regime and the development of civic-minded communal groups such as the Muslim Brotherhood that give Egypt the best chance for sustainable self-governance. This article proposes that by applying the early 20th …

The Ohio Constitution, Jefferson's Danbury Letter And Religion And Education, David W. Scott Dr.

David W Scott Dr.

Summary of article entitled “The Ohio Constitution of 1803, Jefferson’s Danbury Letter and Religion in Education” Never done before, this article brings together existing scholarship on the Ohio constitution of 1803, President Jefferson’s 1802 letter to the Danbury Baptists, and the education provision of the Northwest Ordinance. In so doing, it provides support for the conclusion that the section on religion of the Ohio constitution of 1803 represented a consensus in the early days of the Republic in regard to church and state. This Constitution was developed and supported by Jeffersonians at both the state and national level. It includes …

Elect The Person Or Elect The Party; A Comparative Analysis Of The Differing Electoral Procedures Of The United States, Germany, And The United Kingdom., Rebecca D. Gilliland

Rebecca D Gilliland

This paper is a comparison between the United States system of electing Congressional officials with that of Germany and the United Kingdom. The focus is on the electoral process itself and the resulting representation. The result of the research into differing voting systems is that the United States should consider an alternative system to provide more accurate representation of the electorate within Congress. A brief discussion regarding the means for achieving the suggested change is also included.

Government Inc.: The Fcpa Realistically Defined, Justin T. Hellman

Justin T. Hellman

The Foreign Corrupt Practices Act (FCPA) criminalizes bribing foreign officials. Colloquially, the term “foreign official” evokes images of presidents, prime ministers, and other state representatives. Rarely would one think of doctors, veterinarians, or liquor store employees as officials of foreign governments. For FCPA purposes, however, a liquor store employee can be treated the same as a head of state.

Last year for the first time, two federal courts addressed the FCPA's expansive interpretation. In response to the courts' abstract guidance, critics contend that the FCPA--the most influential foreign anti-bribery law of all time--is much too vague. Contrary to ongoing criticism, …

Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys

Todd E. Pettys

From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting …

It's Well Past Time To Talk Turkey: The Rule Of Twenty-Four And The Rule Of One Hundred, David D. Butler

David D. Butler

The only question is who decides. The mob, the army, the people, the Congress, or the judges are not right because they are right, they are right because they are final. Lenin - the terrorist and not the pop star - said, "If a man says 'A.' he says 'B.'" If you celebrate Brown versus Board, you inevitably celebrate Dred Scott versus Sanford and Plessy versus Furgerson. This article argues that it it time, indeed, past time, for America to abandon lifetime federal judges and with them the poison of affirmative action and school busing.

Many Voices, David D. Butler

David D. Butler

No abstract provided.

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And Bankruptcy Of The “Nature-Nurture” Debate, 21 Tex. J. Women & L. 187 (2012))., Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature: and the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what kind of thing a “nature” …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Aaron Christopher Bryant

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite – as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell’s was that such abuse of language – which in his novel he labeled “Newspeak” -- would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical …

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Janet Moore

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light.

Connick and …

Federalism, Harm, And The Politics Of Leal V. Texas, Richard Broughton

Richard Broughton

Humberto Leal Garcia, a Mexican national who had lived in the United States since the age of two, was convicted and sentenced to death in Texas for brutally raping and killing sixteen-year-old Adria Sauceda in 1994. In 2011, he asked the United States Supreme Court to stay his execution because Texas officials had not given him access to the Mexican Consulate, in violation of an international treaty. His case ignited a brief but powerful storm of controversy that went beyond his legal claims and ventured into the arena of politics, placing even some conservative instincts about constitutional politics at odds …

Congressional Inquiry And The Federal Criminal Law, Richard Broughton

Richard Broughton

Federal criminal law has become so far-reaching that scholars and commentators on both the political left and political right have joined forces to demand serious reforms related to defining, prosecuting, and punishing federal crimes. This Article makes the case for greater attention to, and use of, congressional inquiry powers – investigation and oversight – to constrain the massive federal criminal law regime. This Article first identifies, through existing law and scholarship, some of the problems of the federal regime, including over-federalization, anemic limits on prosecutorial power, and the ordinary politics that contribute to these problems. Using the 2009 and 2010 …

Spending Power Bargaining After Sebelius, Erin Ryan

Erin Ryan

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future. After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, …

Ten Elements Of "Real" Ethics In The Practice Of Law (And Life), David Barnhizer

David Barnhizer

The legal profession has been “running a game” on its clients and on American society in its claim that it can self-regulate. The system of ethical regulation as practiced by the legal profession and courts is not a “real” system nor can it even be said to be an Ideal system. It is a deceptive pretense and pretension. It is time to stop the deception and to construct a new way of regulating lawyers and holding them to account for deficiencies and neglect. Many lawyers will not accept this interpretation either because of self-interest or to avoid facing the uncomfortable …

The Immigrant And Miranda, Anjana Malhotra

Anjana Malhotra

The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this article breaks new ground by examining judicial responses, and specifically the sharply divergent approaches that federal appellate courts have used to determine whether Miranda warnings must be given to immigrants during custodial interrogations about their immigration status that have both criminal and civil implications.

Nonprofits, Politics, And Privacy, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

The time is ripe for a deeper consideration of the policy concerns that underlie public disclosure requirements for politically active tax-exempt nonprofit organizations and the related issue of privacy. To clarify the discussion, one aspect for deeper consideration is recognizing that this particular area is at the intersection of three significantly different disclosure regimes. Those three regimes are (1) federal tax law generally, (2) federal tax law as it applies to tax-exempt nonprofit organizations, and (3) federal election law. These regimes are a study in contrasts. Federal tax law strongly protects taxpayer information from public disclosure. And while federal tax …

Exit, Voice And International Jurisdictional Competition: A Case Study Of The Evolution Of Taiwan’S Regulatory Regime For Outward Investment In Mainland China, 1997-2008, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

This Article explores the interplay of demand and supply forces in the market for law through international jurisdictional competition led by offshore financial centers. To do so it uses the example of the evolution of a regulatory regime imposed by an onshore jurisdiction, Taiwan, to control outward investment into mainland China (“China-investment”). The argument is that jurisdictional competition brought about by capital mobility or exit will provoke legal changes to prevent the departure of capital when laws reduce the value of remaining within the jurisdiction. The case study is used to examine the extent to which jurisdictional competition fuelled by …

Negotiating Federalism Past The Zero Sum Game, Erin Ryan

Erin Ryan