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Articles 1 - 20 of 20
Full-Text Articles in Law
Guns On Campus: A Look At The First Year Of Concealed Carry At Texas Universities, Aric K. Short
Guns On Campus: A Look At The First Year Of Concealed Carry At Texas Universities, Aric K. Short
Faculty Scholarship
After years of failed attempts, the Texas Legislature passed "campus carry" in 2015. Under the new law, effective in 2016 for four-year institutions, public universities must allow the concealed carry of handguns by license holders on their premises. Texas's campus carry law is unique when compared to other states that allow concealed carry on college campuses: each university is given the flexibility to create weapons implementation plans, including the establishment of limited gun-free zones. The first year of campus carry implementation by Texas universities has been relatively quiet, with generally uniform implementation rules established by colleges across the state. However, …
Alternatives To Immigration Detention, Fatma E. Marouf
Alternatives To Immigration Detention, Fatma E. Marouf
Faculty Scholarship
The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.
Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney
Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney
Faculty Scholarship
If you ask legal ethics scholars what they remember about Louis D. Brandeis's judicial confirmation hearings, most would point to the manner in which he responded to questions about his representation of persons with perceived conflicts of interest. Louis Brandeis responded to challenges by stating that he was "counsel for the situation. Some use this comment when examining problems associated with a single lawyer representing multiple clients in the same transaction. Others believe that Brandeis may have been referring to a type of intermediary role in which lawyers attempt to adjust the rights and interests of multiple clients with potentially …
Samuel Alito: Populist, William Araiza
Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel
Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel
Faculty Scholarship
Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an …
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy
Faculty Scholarship
The conflict between various versions of “originalism” and “living constitutionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance … who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, …
Designing Systems For Achieving Justice After A Peace Agreement: Northern Ireland's Struggle With The Past, Jacqueline Nolan-Haley
Designing Systems For Achieving Justice After A Peace Agreement: Northern Ireland's Struggle With The Past, Jacqueline Nolan-Haley
Faculty Scholarship
No abstract provided.
Sub-Regional Courts In Africa: Litigating The Hybrid Right To Freedom Of Movement, Laurence R. Helfer
Sub-Regional Courts In Africa: Litigating The Hybrid Right To Freedom Of Movement, Laurence R. Helfer
Faculty Scholarship
Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on sub-regional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice (EACJ), the Court of Justice of the Economic Community of West African States (ECOWAS), and the Tribunal of the Southern African Development Community (SADC) have received few suits challenging trade restrictions and other barriers to sub-regional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law.
This article offers the first analysis of EACJ, ECOWAS Court and …
Doing Gloss, Curtis A. Bradley
Doing Gloss, Curtis A. Bradley
Faculty Scholarship
It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …
Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles
Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles
Faculty Scholarship
Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one …
Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen
Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen
Faculty Scholarship
Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring mechanism …
Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati
Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati
Faculty Scholarship
Variation exists in how death examinations take place in the United States. In some counties and states decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner. In other counties and states, an appointed medical professional performs the death examination. We provide preliminary tests of the difference in performance between death examination offices run by appointed medical professionals compared with elected coroners. We find that death examiner offices in elected coroner states are less likely to …
Opposing International Justice: Kenya’S Integrated Backlash Strategy Against The Icc, Laurence R. Helfer, Anne E. Showalter
Opposing International Justice: Kenya’S Integrated Backlash Strategy Against The Icc, Laurence R. Helfer, Anne E. Showalter
Faculty Scholarship
The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (ICC). This Article argues that these strategies are part of an integrated backlash campaign against the ICC, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures— politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government …
Voice And Exit As Accountability Mechanisms: Can Foot-Voting Be Made Safe For The Chinese Communist Party?, Roderick M. Hills Jr., Shitong Qiao
Voice And Exit As Accountability Mechanisms: Can Foot-Voting Be Made Safe For The Chinese Communist Party?, Roderick M. Hills Jr., Shitong Qiao
Faculty Scholarship
According to Albert 0. Hirschman's famous dichotomy, citizens can express their preferences with their "voice" (by voting with ballots to elect better representatives) or by "exit" (by voting with their feet to choose better places to live). Suppose, however, that ballot-voting is ineffective: Can exit not merely aid but also replace voice? Using the People's Republic of China, a party state without elective democracy as a case study, we argue that exit is not a substitute for, but rather a complement to, voice. China's bureaucratic promotion system plays the same role that local elections do in the United States, promoting …
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Faculty Scholarship
Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …
Fear And Firearms, Darrell A. H. Miller
City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran
City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran
Faculty Scholarship
When we think about the democratic promise of higher education, we often think of public universities. Consider, for example, the civic-minded reflections of Gordon Davies, the former Chancellor of the University of Virginia, who concluded in 1997 that “[e]ducation is not a trivial business, a private good, or a discretionary expenditure. It is a deeply ethical undertaking at which we must succeed if we are to survive as a free people.” This lofty vision has since been undermined by persistent cuts in funding for state universities across the nation. In 2007, James Duderstadt, the former president of the University of …
A Guide To The Guide To The Republican Better Way Plan, Alex Raskolnikov
A Guide To The Guide To The Republican Better Way Plan, Alex Raskolnikov
Faculty Scholarship
This special Issue of the Columbia Journal of Tax Law is bound to have both an immediate impact and a lasting significance. The immediate impact is assured because the sole focus of this Issue is the tax plan proposed by the Congressional Republicans as part of their broad reform agenda called A Better Way: Our Vision For A Confident America. As this Issue goes to print, the Better Way Plan (or the Plan for short) is being debated in the White House, on Capitol Hill, in the press, in academic circles, think tanks, the U.S. Chamber of Commerce, and …
Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard
Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard
Faculty Scholarship
Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered …
Property And Sovereignty, Information And Audience, Thomas W. Merrill
Property And Sovereignty, Information And Audience, Thomas W. Merrill
Faculty Scholarship
Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences – strangers and transactors – those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to …