Law Commons^™

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

David C. Gray

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

The Reclassification Of Extreme Pornographic Images, Andrew D. Murray

Professor Andrew D Murray

Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government’s attempt to control the availability of such material through s.63 of …

An Attack On Self-Defense, Reid G. Fontaine

Reid G. Fontaine

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion. Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid. In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification. Because this three-requirement framework raises …

No Rational Basis: The Pragmatic Case For Marijuana Law Reform, Eric Blumenson

Eric Blumenson

This article presents a critique of marijuana prohibition and suggests some alternative regulatory approaches that would be more productive and consonant with justice. Part I relies on a forty-year empirical record to demonstrate that (1) reliance on a law enforcement approach has aggravated rather than mitigated the risks involved with marijuana use, and (2) criminalization, which results in the arrest of more than 700,000 Americans annually for possession of any amount of marijuana, is an inhumane and destructive response to an act that almost 100 million Americans have committed. Part II assesses the relative merits of several alternative reform policies, …

Racial Exhaustion, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme …

Feminizing Capital: A Corporate Imperative, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article argues that Norway’s Corporate Board Quota Law (“CBQ”) fosters a productive symbiosis between the public and private spheres. Recent studies indicate that higher numbers of women in executive positions result in stronger rates of corporate return on equity (“ROE”). Countries with higher levels of women's political representation also tend to have higher levels of economic growth. Increasing women's workforce participation outside the home can drive overall economic growth. These factors prompted the CBQ's proponents to argue for the economic imperative of women's corporate leadership. The CBQ will not only ameliorate gender inequality, but will bring new life to …

Haunted By Brown, Robert Lipkin

Robert Justin Lipkin

No abstract provided.

Educating Lawyers For The Global Economy: National Challenges, Carole Silver

Carole Silver

This essay addresses the challenge of educating law students to work in an increasingly global context. For students enrolled in United States law school, insight into the ways in which globalization matters can be drawn from the structural approaches to globalization of US-based law firms. These firms pursue their international practices by integrating lawyers educated and licensed in the firm’s home country (the US) and in the host jurisdictions in which the firm has offices. As a result, the success of the firm in its international practice depends upon the ability of its lawyers to develop strong and effective cross-national …

Between Diffusion And Distinctiveness In Globalization: U.S. Law Firms Go Glocal, Carole Silver

Carole Silver

No abstract provided.

Understanding The Prop 8 Litigation: The Scope Of Direct Democracy And Role Of Judicial Scrutiny, Ronald Steiner

Ronald L. Steiner

Once the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are …

A Commentary On The Old Saw That Same-Sex Marriage Threatens Civilization, Ronald L. Steiner

Ronald L. Steiner

Discussions of same-sex marriage frequently entertain the notion that civilization is somehow at stake were a society to award legal sanction to it, and to gay rights more generally. Typically, those who express concern for negative civilizational consequences have in mind Western civilization, and more specifically Christian civilization. This civilizational concern will often be amplified by the implication that opposite-sex, or opposite-sex monogamous marriage is a timeless human universal. Any other marital regime is presumed to be an aberration, most likely the result of grave moral depravity of a sort supposedly facilitated by the modern rights-based society. This chapter subjects …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

Lgbt Elder Law: Toward Equity In Aging, Nancy J. Knauer

Nancy J. Knauer

At a time when LGBT individuals enjoy an unprecedented degree of social acceptance and legal protection, many LGBT elders face the daily challenges of aging isolated from family, detached from the larger LGBT community, and ignored by mainstream aging initiatives. The corrosive legacy of the pre-Stonewall views of homosexuality makes many LGBT elders reluctant to declare themselves and demand equal treatment from policy makers and health care providers. As a result, they are denied the basic dignity of being able to share their memories of a life well lived without fear of rejection and reprisal. The concerns of LGBT elders …

Behavioral Economic Issues In American & Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Vultures, Hyenas, And African Debt: Private Equity And Zambia (Private Equity Symposium), Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

A 2007 U.K. court case involving Donegal, a private equity fund, and the Republic of Zambia, has contributed to an ongoing debate about the operation of so-called vulture funds in African and other developing countries. Donegal sued Zambia for more than fifty-five million U.S. dollars in connection with a debt owed by Zambia to Romania for Zambia’s acquisition of agricultural machinery from Romania pursuant to a credit agreement dated April 17, 1979. Donegal acquired the Zambian debt from Romania in 1999 at some eleven percent of face value. Although the Donegal court explicitly limited its scrutiny to the legal questions …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine, Jd, Phd

Reid G. Fontaine

For a number of reasons, including the complicated psychological nature of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been whether the defense is a partial justification or excuse. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate that even in circumstances in which there is no actual provocation, or the provocation is not sourced …