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2005

BLR

The Ohio State University Moritz College of Law Working Paper Series

Articles 1 - 11 of 11

Full-Text Articles in Law

Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane May 2005

Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane

The Ohio State University Moritz College of Law Working Paper Series

Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a …

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Ambiguity And Policy Making: A Cognitive Approach To Reconciling Chevron And Mead, Peter M. Shane May 2005

Ambiguity And Policy Making: A Cognitive Approach To Reconciling Chevron And Mead, Peter M. Shane

The Ohio State University Moritz College of Law Working Paper Series

When decided, both Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and United States v. Mead, 533 U.S. 218 (2001) were trumpeted, whether by supporters or critics, as marking substantial changes in the law governing judicial review of agency statutory interpretation. This essay argues that what the Court actually decided in each case was entirely consistent with the fabric of the law of judicial review of administrative action as woven during earlier decades. Unfortunately, however, the Court's rhetoric in both opinions is confusing and unhelpful at key points, creating impressions of substantial changes in the law when none …

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Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman May 2005

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

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Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott May 2005

Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott

The Ohio State University Moritz College of Law Working Paper Series

We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …

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Lucky: The Sequel, Martha Chamallas May 2005

Lucky: The Sequel, Martha Chamallas

The Ohio State University Moritz College of Law Working Paper Series

Lucky: The Sequel is a review essay based on Alice Sebold’s 1999 memoir Lucky in which Sebold describes her own rape as a college student, her experiences as a rape victim and her navigation of the legal system. Chamallas uses Sebold’s rape narrative to explore themes of particular interest to feminist legal scholars. She discusses the intersection of race and rape, the continuing controversy surrounding the categorization of rape as a crime of violence versus a sex crime and the usefulness of considering the social and cultural dimensions of the trauma of rape.

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Civil Rights In Ordinary Tort Cases: Race, Gender, And The Calculation Of Economic Loss, Martha Chamallas May 2005

Civil Rights In Ordinary Tort Cases: Race, Gender, And The Calculation Of Economic Loss, Martha Chamallas

The Ohio State University Moritz College of Law Working Paper Series

This article explores race and sex bias in the computation of damages for loss of future earning capacity, an important component of economic loss in personal injury cases. It analyzes recent cases in the United States and in Canada which reject the use of race and sex-based tables to determine awards for female and minority plaintiffs and explains the method used by the special master in the September 11th Compensation Fund. Chamallas explores objections to reform -- from both the “right” and the “left” –- and makes the case for connecting civil rights principles to civil litigation.

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The Shadow Of Professor Kingsfield: Contemporary Dilemmas Facing Women Law Professors, Martha Chamallas May 2005

The Shadow Of Professor Kingsfield: Contemporary Dilemmas Facing Women Law Professors, Martha Chamallas

The Ohio State University Moritz College of Law Working Paper Series

This essay discusses the predicament of women law professors in an era when the representation of women on law faculties has reached a “critical mass.” It explores three mechanisms for reproducing gender inequality: (1) self-fulfilling stereotypes, (2) gender-specific comparison groups, and (3) the accumulation of small disadvantages. Chamallas uses stories from her own and colleagues’ experiences to illustrate contemporary forms of bias.

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The Two Unanswered Questions Of Illinois V. Caballes: How To Make The World Safe For Binary Searches, Ric Simmons Apr 2005

The Two Unanswered Questions Of Illinois V. Caballes: How To Make The World Safe For Binary Searches, Ric Simmons

The Ohio State University Moritz College of Law Working Paper Series

This Article discusses the recent Supreme Court decision Illinois v. Caballes, which held that the Fourth Amendment does not bar the use of drug-detection dogs, even in the absence of reasonable suspicion. It argues that the Caballes case paves the way for widespread and indiscriminant use of a new type of surveillance known as a binary search. A binary search is defined as a search which provides the law enforcement official with no information about the subject other than whether or not illegal activity is present. Drug-detection dogs are one example of a binary search, but there are many others …

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The Disability Integration Presumption: Thirty Years Later, Ruth Colker Mar 2005

The Disability Integration Presumption: Thirty Years Later, Ruth Colker

The Ohio State University Moritz College of Law Working Paper Series

The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of “integration.” This article brings that debate to a new context – the integration presumption under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has contained an “integration presumption” for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In …

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Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt Mar 2005

Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt

The Ohio State University Moritz College of Law Working Paper Series

Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit.

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Regulation Nms: Has The Sec Exceeded Its Congressional Mandate To Facilitate A “National Market System” In Securities Trading?, Dale A. Oesterle Jan 2005

Regulation Nms: Has The Sec Exceeded Its Congressional Mandate To Facilitate A “National Market System” In Securities Trading?, Dale A. Oesterle

The Ohio State University Moritz College of Law Working Paper Series

The SEC is currently holding hearings on sweeping changes to the micro-structure of the country's securities trading markets - modifying the trade through rule, for example. Professor Oesterle argues that the SEC should not be in the business of so structuring the country's securities markets in the first place. In the piece he chronicles the SEC's expansive interpretation of its power under Congress's 1975 National Market System Amendments to the 1934 Securities and Exchange Act and questions whether Congress intended to grant the SEC such a mandate.

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