Law Commons^™

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people convicted …

Acontextual Judicial Review, Louis Michael Seidman

Louis Michael Seidman

Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political …

Trout Of Bounds: The Effects Of The Federal Circuit Court Of Appeals’ Incorrect Fifth Amendment Takings Analysis In Casitas Municipal Water District V. United States, Raymond Dake

Raymond Dake

Abstract: The Federal Circuit Court of Appeals decision in Castias Municipal Water District v. United States to apply a physical takings analysis to the partial interference of the water district’s water rights by the government in order to protect the steelhead trout through enforcement of the Endanger Species Act (“ESA”) is incorrect, plain and simple. Instead, I argue for the use of a regulatory takings analysis for partial takings of rights to use water under the Penn Central Test. The Casitas Court’s ruling misapplies California water law, disregards U.S. Supreme Court precedent from Tahoe-Sierra, ignores underlying theory and policy to …

Resurrecting The Argument For Judicial Empathy: Can A Dead Duck Be Successfully Repackaged For Sale To A Skeptical Public?, Tobin Sparling

Tobin Sparling

President Obama's campaign to promote judicial empathy has proved a failure, rejected by his own judicial nominees and the public at large. Based on an examination of current popular conceptions of justice and a survey of scientific understanding of what empathy is and how it works, this article examines whether judicial empathy is a cause worth saving and, if so, whether it can, indeed, be saved. It argues that the advocacy of judicial empathy can and should be revived and suggests a strategy for politicians, judges, and others who desire to promote it. This strategy operates from two basic presumptions. …

Towards Cultural Autonomy In Tibet, George Zheng

George Zheng

Accommodating cultural distinctiveness of minority ethnic groups in multi-ethnic states has been an issue of theoretical importance and practical urgency for decades. China is the most populous multi-ethnic country in the world with a unique institutional design for ethnic minorities. However, this institutional design, namely, Minzu Quyu Zizhi (Regional Ethnic Autonomy), has not been properly studied before being criticized or ignored by the western commentators. In the western world, the Tibet issue has been extensively discussed in the context of human rights and “universal” constitutional principles, but rarely in the context of Chinese constitutional law. This article aims to fill …

The Art Of Discretion: Umpires As Judges, Carrie Leonetti

Carrie Leonetti

This Essay posits that those who object to the oft-employed judges-as-umpires analogy (not to mention many of those who employ it) do not really understand what umpires do because calling balls and strikes is highly complicated, nuanced, and discretionary, involving determinations of the intents of the pitcher and batter and the reasonableness of the batter’s actions at the plate. It argues that the core of the judges-as-umpires analogy – the idea that the parameters of the strike zone are fixed and not a matter of personal judgment – is faulty because, while the definition of the strike zone is fixed …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

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.

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, And The Economically Efficient Approach For Courts To Take To Marine-Salvage Cases: A Positive Analysis And Related Critique Of Landes And Posner’S Classic Study, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, And The Economically Efficient Approach For Courts To Take To Marine-Salvage Cases: A Positive Analysis And Related Critique Of Landes And Posner’S Classic Study, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …

Dialectical Jurisprudence: Aristotle And The Concept Of Law, John T. Valauri

John T. Valauri

This article offers a therapy for modern analytic legal philosophy’s bipolar disorder, a disorder manifested in the tendency to approach and analyze philosophical topics as dueling dichotomies, incapable of resolution or reconciliation. The upshot of this situation has been the division of Anglo-American legal philosophy into two warring camps—positivist and non-positivist. Through an examination of puzzles involving conceptual analysis and legal rules, this article suggests a dialectical alternative to the bipolar disorder, an alternative inspired by Aristotle’s practical philosophy. This dialectical jurisprudence seeks to change the pursuit of the nature of law from a search for necessary and sufficient conditions …

Conceptual Analysis In Science And Law, Aaron Rappaport

Aaron Rappaport

Ever since H. L. A. Hart’s magisterial work, The Concept of Law, conceptual analysis has been viewed as the dominant method of doing jurisprudence. Far less appreciated is the fact that it is also a central tool in the field of cognitive science. That may be surprising to some, given the differences in these disciplines’ mission: Legal theorists struggle with abstract questions about the “nature” of Law and Justice; cognitive scientists explore the workings of the human mind. If cognitive scientists and legal philosophers are doing different things when they do conceptual analysis, how do they differ? This paper offers …

Democracy At The Corner Of First And Fourteenth: Judicial Campaign Spending And Equality, James Sample

James Sample

This Article posits that the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc., which recognized that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions, suggests that guaranteeing due process of law in state courts presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court’s landmark decision in Buckley v. Valeo is understood to hold that only an “anti-corruption” rationale can justify campaign finance regulations, and to draw a rigid distinction between political campaign “expenditures” and “contributions,” holding …

Smoke, Mirrors & Contract Law, Danielle K. Hart

Danielle K Hart

Abstract: Contract law is set up to be transaction enforcing, that is, to be binding. Binding means two different but related things. First, “binding” means that the contract is valid as between the parties (because it satisfies contract law’s formation requirements) and, second, it means that the rights and obligations set forth in that contract will be enforced by the state on behalf of one of the parties over the objection of the other, now resisting party. Modern contract law uses several well-established assumptions about the contracting parties, including the way they behave when contracting, and the roles of the …

The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang

Sean S Yang

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

The Rhetoric Of Originalism, David Finkelstein

David Finkelstein

Justice Stevens has recently observed that originalism "holds out objectivity and restraint as its cardinal and, it seems, only virtues." McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3118 (2010) (Stevens, J., dissenting). This article critically examines the notion that non-originalist methods of interpretation invite subjectivity into the process and are therefore insufficient to constrain. I suggest that the originalist's dissatisfaction with ordinary methods of interpretation rests of bad philosophy of language, and that properly thought through, Wittgenstein's rule-following considerations point to a better way of thinking about meaning in general, and legal interpretation in particular.

The Bible And The Constitution, Brad Jacob

Robert Weston Ash

ABSTRACT

The Bible and the Constitution Prof. Bradley P. Jacob

Is the United States Constitution consistent with the Holy Bible? For many people today, and especially for most lawyers, legal scholars and judges, the question is both irrelevant and silly. Their answer would be a simple, “Who cares?”

Yet there are some – Christian judges, lawyers and legal scholars – for whom the question matters a great deal. It matters to anyone who follows the tradition of Thomas Aquinas, William Blackstone, and Martin Luther King, Jr., in holding that a human law that violates God’s eternal principles of justice is …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

A Populist Manifesto For Learning The Law, Eric E. Johnson

Journal of Legal Education

No abstract provided.

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

The Myth Of Religious Freedom: The Implications Of State Control Of Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

Law As Referent, Craig G. Bateman

C. G. Bateman

In this article I suggest that “the Law,” (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as “lower order laws,” being careful to confine our discussions of them with the exclusive use of a small “l” (law), …

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

Samantar V. Yousuf: Development In The Laws Governing Civil Torture Claims In U.S. Courts., Solomon Shinerock

Solomon B. Shinerock

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international …

Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann

Faculty Publications

No abstract provided.

Jefferson's "Laws Of Nature": Newtonian Influence And The Dual Valence Of Jurisprudence And Science, Allen P. Mendenhall

Allen Mendenhall

Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an …