Law Commons^™

The Constitution's Political Deficit, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative …

After The Catastrophe: Disaster Relief For Hospitals, Elizabeth Weeks Leonard

Scholarly Works

Disaster planning for health care providers following the September 11, 2001, terrorist attacks and, more recently, Hurricane Katrina, focuses on preparing hospitals and other emergency services to respond to victims' medical needs. But little attention has been paid to the challenges that providers would face resuming normal operations after responding to the catastrophe. A large-scale catastrophe could create unprecedented demand for health care and emergency services. Hospitals already struggle to fulfill the high demand for and high costs of emergency care. Following a major disaster, hospitals would face additional financial challenges. Strained capacity and financial reserves, may force hospitals to …

What The Swiss Miss (Review Of Friedrich Durrenmatt, Selected Writings), Kenneth Anderson

Popular Media

The Swiss playwright and novelist Friedrich Durrenmatt (1921-90) is remembered among English-language audiences primarily as the author of the 1956 play, The Visit of the Old Lady. He is, however, a leading playwright and novelist, primarily of detective fiction, of Europe and the German language in the post-war period. This review from the Wall Street Journal examines the full body of his work in a three volume selection of his writings published by the University of Chicago. One important consideration is Durrenmatt's place as a German language writer, yet Swiss, rather than German, following the horrors of the Second World …

Use It Or Pretenders Will Abuse It: The Importance Of Archival Legal Information, Theodore Eisenberg

Cornell Law Faculty Publications

Archival information about the legal system should inform policymaking. Despite claims of soaring civil damages awards, modem historical data show no to little growth in tort awards and no real growth in punitive damages awards. The data also show a dramatic forty-year decline in trial rates from more than ten percent of case dispositions to less than two percent. The decline needs to be explained in part by using archival data. Contrary to perceptions underlying the Class Action Fairness Act of 2005, little systematic evidence exists that state and federal courts process class actions significantly different. These results contradict the …

Law And Terror, Kenneth Anderson

Popular Media

This short policy article argues that both the Bush administration, in its final two years in office, and Congress have an obligation and interest in taking US counterterrorism policy beyond the current "war on terror" operated on the basis of executive power and discretion, to comprehensively institutionalize it for the long term through Congressional legislation. It argues that the Military Commissions Act of 2006 is mistakenly aimed merely at satisfying the narrow requirements of the Hamdan decision, and is far from the comprehensive legislation that institutionalizing counterterrorism policy requires in order both to have democratic legitimacy with the American people …

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

Scholarly Works

Law school seminars sometimes educate the professor as much as the students. That proved true for me in the spring of 2004, when seventeen law students and two colleagues from other departments joined me for a seminar focused on ancient and contemporary perspectives on law found within various Christian theological traditions. One seminar student who repeatedly spurred my own thinking was Jason Carter. Particularly thought provoking was the paper Jason presented in the final weeks of the seminar.

The returns from the 2004 election suggested that Jason had been unusually prescient in his analysis of U.S. religious and political trends. …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Cornell Law Faculty Working Papers

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE).

A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

Christian Faith And Political Life: A Dialogue [With Jason Carter], J. Randy Beck

Scholarly Works

Several months before the 2004 presidential election, a seminar at the University of Georgia School of Law explored views of law and legal institutions reflected in various Christian theological traditions. The class included an unusually gifted group of students from a variety of theological and political backgrounds. One student brought a particularly unique and relevant set of experiences to the course. Jason Carter grew up as the grandson of Jimmy Carter, a former Democratic President who has often discussed the political implications of his Christian faith. Jason also observed first hand the interaction of Christian faith and political activity as …

For A New Order In The Court, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Reviewed Work: Understanding Institutional Diversity By Elinor Ostrom, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

No abstract provided.

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

The Place Of Competition In American Election Law, In The Marketplace Of Democracy, Nathaniel Persily

All Faculty Scholarship

This forthcoming book chapter defines the problem of diminished political competition, describes the relevant legal analogies concerning regulation of economic competition, and explains how the law shapes the competitive environment for elections. It also details how Supreme Court justices have sometimes tried to incorporate competitiveness concerns into their election law decisions in cases concerning ballot access, redistricting, campaign finance, party reform, and term limits. For the most part, constitutional law proves to be both a blunt and a coarse instrument for addressing excesses of partisan greed or self-interest, but justices of varying ideological leanings have invoked such concerns (usually in …

Gay Marriage, Public Opinion And The Courts, Nathaniel Persily

All Faculty Scholarship

This Article examines trends in public opinion and media coverage on gay marriage to evaluate the claim that the Supreme Court’s decision in Lawrence v. Texas and the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Health catalyzed an anti-gay “backlash.” We find that in the immediate aftermath of Lawrence a larger share of the American public expressed hostile attitudes on questions tapping opinions on gay sex and gay marriage. That backlash continued through the two Goodridge decisions and the 2004 election, but appears to have leveled off and even returned to pre-Lawrence levels by the summer of …

Keep These Branches Untangled, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Refund Booth: Using The Principle Of Symmetric Information To Improve Campaign Finance Regulation, Ian Ayres, Bruce Ackerman

Philip A. Hart Memorial Lecture

On March 22, 2006, Professor of Law, Ian Ayres of Yale Law School, delivered the Georgetown Law Center’s twenty-sixth Annual Philip A. Hart Memorial Lecture: "The Refund Booth: Using the Principle of Symmetric Information to Improve Campaign Finance Regulation." The article, The Secret Refund Booth, was co-authored with Professor Bruce Ackerman of Yale University.

Ian Ayres is a lawyer and an economist. He is the William K. Townsend Professor of Law and Anne Urowsky Professorial Fellow in Law at Yale Law School and a Professor at Yale's School of Management. He is the editor of the Journal of Law, …

The Opacity Of Transparency, Mark Fenster

UF Law Faculty Publications

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance, promises the moon -- a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public's engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes …

Electoral College Reform Is Heating Up, And Posing Some Tough Choices, Robert Bennett

Public Law and Legal Theory Papers

Electoral College reform is beginning to get some attention, with two different emphases, a move to institute a nationwide popular vote without a constitutional amendment, and a move to forbid faithless electoral votes. There is no logical incompatibility between the two, but in political and public policy terms, there are tensions between them. This paper evaluates the relative merits and importance of the two efforts and explores the tensions in simultaneous pursuit of the two.

Reform In Lieu Of Change: Tastes Great, Less Filling, Jonathan G.S. Koppell

Publications from President Jonathan G.S. Koppell

In this response to Light, Koppell argues that the increasing frequency of reform may reflect Congress's inability to make significant changes to the substance of entrenched government programs. Moreover, he observes that the more profound evolution in government has been the movement toward the market-based provision of services, which has created a demand for new competencies in the public sector.

Protecting Posterity: Economics, Abortion, Politics, And The Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Maine Women's Advocate (2006 - Fall), Maine Women's Lobby Staff

Maine Women's Publications - All

No abstract provided.

The Maine Women's Advocate (2006 - Summer), Maine Women's Lobby Staff

Maine Women's Publications - All

No abstract provided.

The Maine Women's Advocate (2006 - Winter), Maine Women's Lobby Staff

Maine Women's Publications - All

No abstract provided.

The United States As A Democratic Ideal? International Lessons In Referendum Democracy, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Reports of how the United States works to spread democracy around the globe bombard the American public almost daily. Ironically, as principles of democratic governance expand worldwide, the United States, once the vanguard for citizen participation in government, has fallen behind. Although the U.S. system of government has evolved - average citizens now vote directly for their national representatives - the United States still stands as one of only three major industrialized countries in the world that has failed to allow its citizens to vote in a national referendum. Referendum democracy varies from representative democracy by allowing the public a …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

Final Report Of The Cuyahoga County Election Review Panel, S. Candice Hoke, Ronald B. Adrine, Tom J. Hayes

Law Faculty Reports and Comments

The Panel was charged with identifying the deficiencies in the May 2, 2006 Cuyahoga County election, ascertain the causes and contributing factors of those deficiencies and provide recommendations to remedy the deficiencies.

Viewpoint: Legislating Without Deliberation, Carl W. Tobias

Law Faculty Publications

No abstract provided.

Katrina And The Rhetoric Of Federalism, Christina E. Wells

Faculty Publications

The public's desire to assign blame for government's inadequate response to Hurricane Katrina has largely focused on the federal government's slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a …

Champions Of Change: Reinventing Democracy Through Land Law Reform, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article explores the prospects of achieving policy coherence in the field of land use regulation. It explains how, as municipal governments react to pressures and crises at the local level, they discover and adopt new strategies in a constant process of experimentation. Through a properly constructed legal framework, critical information can be relayed from local to higher levels of government, state and federal legislators and judges can respond, and a "system" of law can evolve. Using theories developed in the fields of systems analysis and diffusion of innovations, the Article describes the process by which local communities perceive land …

Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor

Articles

My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or …

Financial Moral Panic! Sarbanes-Oxley, Financier Folk Devils, And Off-Balance Sheet Arrangement, Jose M. Gabilondo

Faculty Publications

No abstract provided.