Law Commons^™

Congress’S Right To Counsel In Intelligence Oversight, Kathleen Clark

Kathleen Clark

This article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice-Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained …

Specialized Courts For Terrorism Trials, Sudha Setty

Sudha Setty

On the campaign trail in 2008, presidential candidate and then-Senator Barack Obama promised to restore America’s place in the world by breaking with many of the national security policies put into effect by President George W. Bush. In January 2009, President Obama made numerous changes to United States foreign policy, including signing an executive order to close the prison at Guantanamo Bay, Cuba and announcing that the United States would not engage in interrogation techniques that constitute torture. In some aspects of national security law and policy, however, Obama has followed the example of President Bush—for example, in his announcement …

An Inquiry Into The Possibility Of An Ethical Politics, Louis E. Wolcher

Louis E Wolcher

Politics is about struggle against others, and it results in the use of law (and hence the threat of coercion) as its primary means for accomplishing its ends. Ethics is about care for others beyond all calculations of individual or collective self-interest. Can politics and ethics be reconciled? In particular, is an ethical politics possible for the twenty-first century? This essay traces the history of grounds and grounding in Western thought with respect to the problem of providing a foundation for any imaginable regime of "ethical" politics in something that would be more solid than mere individual preferences. The investigation …

Judicial Politics, The Rule Of Law And The Future Of An Ermine Myth, Charles G. Geyh

Charles G. Geyh

According to a Renaissance myth, the ermine would rather die than soil its pristine, white coat. English and later American judges would adopt the ermine as a symbol of the judiciary’s purity and commitment to the rule of law. This “ermine myth” remains central to the legal establishment’s conception of the judicial role: independent judges, the argument goes, disregard extralegal influences and instead follow the law strictly. , In contrast, political scientists had long theorized that judicial independence liberates judges to disregard the law and substitute their extralegal policy preferences. A recent spate of interdisciplinary research, however, has led to …

Fighting The Culture War As A Neutral Observer: A Profile Of Justice Scalia’S Machinations In Lawrence V. Texas, George D. Miller

George D Miller

The purpose of this comment is to identify and determine the function of those machinations in the culture war as well as to demonstrate their patent shortcomings. In Part I, it will examine how Justice Scalia plays the “lifestyle card,” a subtle but powerful sign of his allegiance to the far right social and political agenda. Because of the controversy of this charge, much evidence will be adduced to demonstrate that the contemporary use of the word “lifestyle” reinforces a negative connotation of a promiscuous lifestyle often associated with the myth of hyper-sexuality, suggesting gay people “recruit” vulnerable heterosexuals and …

Religious Argument, Free Speech Theory, And Democratic Dynamism, Gregory P. Magarian

Gregory P. Magarian

Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this Article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side …

Special Incentives To Sue, Margaret H. Lemos

Margaret H. Lemos

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when those incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

Harvey Milk, Jane Roe, And James Brady: Why Civic Organizing Matters, Palma Joy Strand

palma joy strand

This Article presents a view of the civic underpinnings of law by examining how civic interaction or the lack of such interaction facilitates or inhibits sociolegal change. The Article begins with empirical observations of civic experience and engagement, which ground more general conclusions about the importance of civic relationships and civic networks as well as the way personal stories contribute to the creation of both. The Article then applies these conclusions to three currently contentious and unsettled issues: gay rights, abortion, and guns. As to gay rights, the “coming out” process identified with Harvey Milk has transformed the civic landscape, …

Bentham & Ballots: Tradeoffs Between Secrecy And Accountability In How We Vote, Allison Hayward

Allison Hayward

The way a group, jurisdiction, or nation votes, and makes decisions binding on their members and citizens, is fundamental and deceptively prosaic. Why do some groups (faculties, Congress, caucuses, HOAs) take public votes in most contexts, accompanied by debate, sometimes heated. Why do others (electorates, labor unions) take private votes (often by ballot cast in a secure setting where “heated debate” is not allowed) in most contexts? Moreover, what should we make of the exceptions to these general forms? This Article will demonstrate that the hybrid mode of voting – non-debated yet non-secret voting such as in contemporary absentee balloting, …

Justice At The Department Of Justice, William D. Corriher

William D Corriher

The paper discusses the continuing impact of two controversial actions by the Bush administration’s Department of Justice: the OLC’s enabling of torture and the policitization of federal prosecutions. The paper critiques several proposals for reform, including an independent Department of Justice, a “Truth Commission” to investigate the Bush administration, and new statutes governing the Department and its relationship with the President. The paper argues that an independent Department would likely be ruled unconstitutional under separation-of-powers principles. The paper concludes that the goal of any reform should be to ensure transparency in executive branch actions. While a “Truth Commission” can guarantee …

Jesus Follows The Socratic Method, Kristopher Eugene Nichols

Kristopher Eugene Nichols

This article, Jesus Follow the Socratic Method, is a detailed analysis and comparison of the trials of Socrates and Jesus of Nazareth. An investigation of these men and trials, two of the most famous in Western history, uncovers truths about human nature, the justice systems of these two ancient societies, and the power and danger of the spoken word to a vocal critical thinker in his own society. This article is twenty-two pages long, contains footnotes and follows the Bluebook format.

The Case For "Cramdown": Eliminating The Practical And Ideological Barriers To Pure Mortgage Modification, Peter J. Leo

Peter J Leo

This article was prepared for a seminar in Consumer Protection. The article makes the case that Congress should modify the Bankruptcy Code to allow for judicial modification of home mortgages on a bankrupt’s principal residence as a means of combating the foreclosure crisis. The article examines two different proposals originally published in the Minnesota Law Review and the Yale Journal on Regulation, examines some of the deficiencies in those proposals, and concludes that “cramdown” will be a more effective means of keeping consumers in their homes.

Freedom Of Speech In American & Spanish Law: A Comparative Perspective, Alfredo Coll

ALFREDO COLL

The Supreme Court of the United States, particularly in the area of obscenity within freedom of speech, has imposed stringent procedural requirements on governmental action aimed at controlling the exercise of first amendment rights. This study argues that several lessons can be learned from these cases: that a judicial body, following an adversary hearing, must decide on the protected character of the speech, and that the judicial determination must either precede or immediately follow any governmental action which restricts speech. The authors also compare and contrast free speech protection in the United States as compared to Spain by analyzing several …

Beyond The Court Of Public Opinion: Military Commissions And The Reputational Pull Of Compliance Theory, Keith A. Petty

Keith A. Petty

The decision to prosecute the suspected co-conspirators of the 9/11 terrorist attacks in either federal court or by military tribunal has reached a critical juncture. Central to this debate is whether the military commissions are consistent with domestic and international standards of justice. Utilizing the analytical framework of compliance theory, this article discusses the U.S. reputation for compliance in the context of the revised military commissions.

A decidedly negative reputation of the military commissions contributed to policies to amend the tribunal process, culminating in the Military Commissions Act of 2009. This supports empirical findings that States are pulled toward compliance …

Honest Services And Dishonest Prosecutions, William D. Corriher

William D Corriher

The paper discusses Skilling v. United States, the recent Supreme Court case involving 18 U.S.C. § 1346, the federal statute prohibiting 'honest services" fraud. It begins by discussing the history of this form of fraud, from its origin in case law to its statutory form to the new definition articulated in Skilling. The background section goes on to discuss recent prosecutions under the statute, both corporate corruption cases and politically motivated prosecutions of public officials. The analysis section argues that it was inappropriate for the Skilling Court to redefine honest services fraud, because such a revision of a federal crime …

Why Same-Sex Marriage Will Not Repeat The Errors Of No-Fault Divorce, Austin R. Caster

Austin R Caster

Because so many negative ramifications resulted from changing marriage laws through no-fault divorce legislation, it is understandable that those who rightfully feared no-fault divorce would also fear any additional changes to the definition of marriage. Those fears are unfounded as applied to same-sex marriage legislation, however, because the same consequences resulting from no-fault divorce do not apply to same-sex marriage. Whereas changing marriage exit rights through laws such as no-fault divorce legislation resulted in an increased divorced rate throughout the world, the opposite has happened in countries that have allowed same-sex marriage laws by changing marriage entrance rights. Society has …

Asking The Right Question In Business Ethics, Louis E. Wolcher

Louis E Wolcher

Based on an address the author gave in Paris in December 2009 at an international program entitled "Revisiting Business Ethics," the present paper attempts to clarify, both philosphically and ethically, the most important aspects of what are called "ethical business practices" and "corporate social responsibility" as these themes present themselves to the individual corporate employee confronted with ethical problems.

Some Reflections On Conservative Politics And The Limits Of The Criminal Sanction, Richard Broughton

Richard Broughton

This Article, written for the Charleston School of Law’s recent symposium on Crime & Punishment, briefly addresses the significance of popular forces and conservative political thought in an American criminal justice regime that has become too broad in its scope and sometimes unnecessarily harsh in its treatment of certain offenders. Although conservatives can plausibly embrace some judicially-enforceable limits on the criminal law, a conservative view of structural constitutional considerations would still constrain the judiciary’s authority to undermine popular decision-making as to criminal law and punishment. This Article cites the Supreme Court’s disparate approach to capital and non-capital proportionality issues under …

Responsibility Of And Trust In Isps, Raphael Cohen-Almagor

raphael cohen-almagor

This discussion is about the neglected concepts of trust and social responsibility on the Internet. I will discuss and explain the concepts and their implications to people and society. I then address the issue of moral and social responsibilities of ISPs and web-hosting companies. I argue that ISPs and web-hosting companies should aspire to take responsibility for content and that they should respect and abide by their own terms of conduct.

Towards A New Moral Paradigm In Health Care Delivery: Accounting For Individuals, Meir Katz

Meir Katz

For years, commentators have debated how to most appropriately allocate scarce medical resources over large populations. In this paper, I abstract the major rationing schema into three general approaches: rationing by price, quantity, and prioritization. Each has both normative appeal and considerable weakness. After exploring them, I present what some commentators have termed the “moral paradigm” as an alternative to broader philosophies designed to encapsulate the universe of options available to allocators (often termed the market, professional, and political paradigms). While not itself an abstraction of any specific viable rationing scheme, it provides a strong basis for the development of …

Insiders Versus Outsiders: A Game-Theoretic Analysis Of The Puerto Rican Status Debate, F.E. Guerra-Pujol

F.E. Guerra-Pujol

In this paper, the author reviews some real-world examples of costly and protracted wars of attrition and describes the current debate over Puerto Rico’s constitutional status as a “legislative war of attrition.” In addition, the author presents a two-player as well as an n-player evolutionary war-ofattrition model and discusses this model’s possible application to the Puerto Rican status debate and other legislative, economic, and political stalemates.

Cold War Paradox: The United States And The South Korean Constitutions Of 1948 And 1988, Mattei Ion Radu

Mattei Ion Radu

No abstract provided.

Regulatory Reform In The States: Lessons From New Jersey, Stuart Shapiro, Deborah Borie-Holtz

Stuart Shapiro

While numerous examinations of the rulemaking process have occurred at the federal level, there is a dearth of studies about the effects of the proceduralization of the rulemaking process on state regulations. Our examination focuses on regulations promulgated in New Jersey, both prior to and following, major procedural changes enacted in the state in 2001. By choosing distinct leadership periods, one governed by Democrats and one by Republicans, we attempt to control for differences in political preferences for regulation. During the study years, we collected data on 1,707 regulations on a wide array of variables from the type of rulemaking, …

Congress, Corporate Boards, And Oversight: A Private Law / Public Law Comparison, Paul S. Miller

Paul S. Miller

This article argues that a system of congressional oversight based on trust can produce more effective government than one based on highly detailed regulations. The article first presents historic examples of congressional oversight and the ways in which trust contributed both to the effectiveness of the oversight and to the success of the policies at issue. The article goes on to examine the rise of trust theory in corporate governance as a means of making oversight by boards of directors more effective and thereby making corporations more profitable. The final part of the article explores how use of trust theory …