Law Commons^™

Penn Central After 35 Years: A Three-Part Balancing Test Or A One-Strike Rule?, R. S. Radford

R. S. Radford

Penn Central Transportation Co. v. City of New York has been called the “polestar” of regulatory taking jurisprudence. Yet after 35 years, there is still no consensus on whether Penn Central sets forth a three-part balancing test, or a "one strike, you're out" checklist. This article presents an empirical analysis of how Penn Central is actually applied in the federal courts, finding distinct differences in the application of the test across jurisdictions.

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Which Interests Should Tort Protect?, Jean M. Thomas

Jean M Thomas

The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests …

Property And Republicanism In The Northwest Ordinance, Matthew J. Festa

Matthew J. Festa

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …

Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson

Colter Paulson

Recent scholarship on the potential for contractual modifications of litigation procedure focuses on contractual theories of enforcement, with constraints supplied by public policy. But this approach ignores the fact that such contracts purport to bind a third-party, the court, that did not agree to change its procedures. Nor can contractual theories of enforcement fully account for the societal and institutional interests in existing procedures. These problems are resolved, however, when contractual procedures are seen primarily as procedures, rather than as contracts, and are evaluated in light of the norms underlying civil procedure.

These norms are found both in the explicit …

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) …

Lincoln's International Law -- Redefining American Exceptionalism, Antonio F. Perez

Antonio F Perez

This paper analyzes Lincoln’s understanding of international law, shows how that understanding flows from the premises from which Lincoln rejected the ruling pre-Civil War understanding of the role of international law in the U.S. Constitution, explains how those premises in turn are grounded in Lincoln’s ethical principles, and draws some tentative conclusions as to the inferences that can be drawn today from Lincoln’s conception of American exceptionalism. First, the essential features of Lincolnian exceptionalism become clear only in the context of a detailed description of the previous ruling conception of American exceptionalism. American exceptionalism, under this theory, focused on institutional …

Law: An Information Technology, John O. Mcginnis

john o. mcginnis

Law: An Information Technology

This article offers an historical, theoretical and practical perspective of law as an information technology. Law fundamentally concerns information—providing information to the community about the content of legal norms and, at least in its common law form, eliciting information about the world from the disputes before a court. After a brief survey of law’s history as an information technology, the article applies information theory to understand recent developments in an important aspect of that technology—legal search. Information theory focuses on the signal to noise ratio of communication. The key to progress in creating a better computerized …

Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie M. Banta

Natalie M Banta

In Substantive Due Process in Exile: The Supreme Court’s Original Interpretation of the Due Process Clause of the Fourteenth Amendment, the author proposes an interpretation of the Supreme Court’s substantive due process jurisprudence, focusing on an often overlooked period between 1873 and 1897. Recently, a flurry of scholarship has addressed the origins of substantive due process. Scholars have focused on how natural law principles were transported to the colonies from the common law of England and how the concept of substantive due process developed before the ratification of the Fourteenth Amendment. Scholars then jump to the discussion of substantive due …

Religion And The Equal Protection Clause, Steven G. Calabresi, Abe Salander

Steven G Calabresi

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter …

Death And Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …

If The Shoe Of The Sec Doesn't Fit: Self-Regulatory Organizations And Absolute Immunity, Jennifer M. Pacella, Esq.

Jennifer M. Pacella, Esq.

In recent years, the absolute legal immunity granted to self-regulatory organizations (“SROs”) in the securities industry has incited increasingly controversial concerns about the lack of accountability of financial regulators. Although SROs like the Financial Industry Regulatory Authority (“FINRA”) are deemed to “stand in the shoes” of the Securities and Exchange Commission (“SEC”) by carrying out delegated, quasi-governmental duties in monitoring securities markets, their alternate role as private, commercial entities raises questions as to the fairness of expansive SRO immunity. Plaintiffs have historically been denied any redress even in instances of alleged SRO fraud, misconduct and bad faith. Earlier this year, …

Religion / State: Where The Separation Lies, Vincent Samar

Vincent J. Samar

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, …

The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth

John Lunstroth

The scientific revolution (or radical Enlightenment) distorted the way we understand the law by causing legal concepts, such as the idea of state, to be split into a scientific (positivist) part and a prudential (moral) part. The Unity Thesis gives us tools for understanding the mechanisms by which that happened and for mapping routes to the future that may be better for everyone. I illustrate using the US Constitution. The idea of the constitution we receive is already a scientific concept, originating in the ideas of state and common good that prevailed well into the 17th century. On the one …

Judicial Efficacy – Providing Justice In State Courts In The Midst Of A Budget Crisis, Mark Gould

Mark Gould

No abstract provided.

Private Lawmaking And The Architecture Of Confidentiality In Nonprofit Boardrooms, Norman I. Silber

Norman I. Silber

Abstract

Placement of the boundary line between transparent and confidential deliberation inside a boardroom affects the quality, efficiency, and fairness of corporate decision making. Policies which do not insist upon confidentiality can improve the perceived legitimacy of decisions and of those who make them; confidentiality can improve the ability to implement decisions effectively. The degree of transparency facilitated by these policies affects the volume and quality of available information. In the nonprofit boardroom, the boundaries that are set by governance rules also reflect and give shape to institutional structures and cultural norms.

This article explores justifications for changing from a …

A Response To Harel And Porat: On The Inadmissibility Of The Aggregated Probabilities Principle, Doron Menashe Dr.

Mahdi Naamnee

This article is a response to an article by Alon Harel and Ariel Porat, recently published in the Michigan Law Review. In the article, the authors argue that, under certain conditions, courts should be permitted to convict a defendant in an unspecified offense. This possibility is meant to address situations in which there is no reasonable doubt that the defendant committed an offense, even though the prosecution failed to prove beyond reasonable doubt that the defendant committed any specific offense of which he was accused. The authors term this new decision principle as the Aggregated Probabilities Principle – APP.

In …

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

Getting Clear On The Originalism Debate: Is Originalism A Theory Of Constitutional Interpretation Or A Normative Rule Of Law?, Judy Hensley

Judy Hensley

The accompanying Article argues that proponents of Constitutional originalism have conflated conceptually distinct terms "meaning," "understanding" and intent, and that this blurring has permitted originalist theory to ignore a tension in its dual justifications rooted in democratic theory, on the one hand, and rooted in a standard semantic theory of intentionalism, on the other by showing that the demands of originalism’s underlying legal theoretical justification conflict with the those of its underlying semantic theoretical justifications. The conflict arises because the normatively significant agent in democratic theory is the Constitutional ratifiers whereas in the standard intentionalist semantic theory it is the …

The Plenary Power Immigration Doctrine: The Post 9/11 Hijacking Of State Legislatures, Geordan S. Kushner

Geordan S Kushner

The Supreme Court has determined Congress’ authority over immigration policy to be one of its plenary powers. Classifying immigration as a plenary power effectively precludes any external involvement and/or interference from any other entity. From the early 1900s and into the 21st Century, Congressional plenary authority over immigration had come to be expected and desired in the United States. However, one event changed this, essentially rendering that power over immigration unconstitutional when taken in light of other doctrines the Court has iterated.

The event that brought about this transformation was the terrorist attacks of September 11, 2001. The attacks transformed …

A Line In The Sand: The Affair Between Henry Ii And Thomas Becket, Deana Perry

Deana Perry

No abstract provided.

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Punishment's Justification, Jeffrey T. Renz

Jeffrey T Renz

Kant’s late 18th Century articulation of retribution and Bentham and Mill’s 19th Century theory of deterrence have survived as the chief justifications for punishing criminals. The two have always been in competition, despite some attempts (chiefly by John Rawls and H.L.A. Hart) to have one serve the other.

The debate between retributivists and utilitarians has recently taken on new life. See C. Flanders, Retribution and Reform, 70 Md. L. Rev. 8 (2010); D. Gray & J. Huber, Retributivism for Progressives: A Reply to Professor Flanders, 70 Md. L. Rev. 141 (2010); D. Markel, Bentham on Stilts: The Bare Relevance of …

The Overlap Of Tax And Financial Aspects Of Real Estate Ventures, Bradley T. Borden

Bradley T. Borden

This article examines the effect partnership tax law has on financial aspects of real estate ventures. It introduces the relevance of the aggregate and entity views of tax partnerships (i.e., LLCs, LPs, and other partnerships) and demonstrates how those views can greatly affect financial projections for each of the members of a real estate venture. It also demonstrates how financial calculations can vary significantly depending upon how closely analysts track a tax partnership’s allocation method. Finally, the article serves as a primer for tax practitioners who are unfamiliar with the financial tools that are so prevalent in real estate analysis, …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Delayed Justice: A Case Study Of Texaco Arnd The Republic Of Ecuador’S Operations, Harms, And Possible Redress In The Ecuadorian Amazon, Suraj Patel

Suraj Patel

Multinational corporations engaging in natural resource extraction are often enticed by nascent foreign regulatory regimes and private dispute settlement mechanisms intended to induce investment. The result of a complicit government and poor operational practices can be environmental devastation and widespread human rights violations for which there is little redress. This paper analyzes the challenges inherent in using private dispute resolution mechanisms to hold corporations accountable for regulatory violations through the lens of Texaco’s 30-year operations in the Ecuadorian Amazon and the Aguinda v Chevron litigations in New York and subsequently Ecuador. The case represents the one of the most significant …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …