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2010

Public Law and Legal Theory

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Full-Text Articles in Law

Absolute Immunity: A License To Rape Justice At Will, Prentice White Dec 2010

Absolute Immunity: A License To Rape Justice At Will, Prentice White

Prentice L White

ABSOLUTE IMMUNITY: A LICENSE TO RAPE JUSTICE AT WILL BY PRENTICE L. WHITE We are all acquainted with the phrase the sanctity of marriage. We understand that the vows made by a couple at the wedding ceremony is sacrosanct, and if those vows are not taken seriously, or abused in any way, then the offending spouse will be penalized and evicted from the marital relationship. Likewise, justice should be handled in the same manner and with the same intensity. America prides itself on having the best legal system in the world. It broadcasts to all the surrounding nations that its ...


The Senate Filibuster: The Politics Of Destruction, Emmet Bondurant Dec 2010

The Senate Filibuster: The Politics Of Destruction, Emmet Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the ...


Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov Nov 2010

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is ...


Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian Mcdonald Nov 2010

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds on ...


If You Think Law Schools Teach Students To "Think Like A Lawyer"...Think Again!, Douglas Rush Nov 2010

If You Think Law Schools Teach Students To "Think Like A Lawyer"...Think Again!, Douglas Rush

Douglas Rush

Law school faculty and deans purport to teach law students to “think like a lawyer.” Indeed, this phrase has been repeated so often that it has become legal pedagogical dogma. Professor Wegner, co-author of the Carnegie Report Educating Lawyers: Preparation for the Profession of Law, has stated that “thinking like a lawyer” has been embraced as a ”trope of the core identity” of the legal academy. Unfortunately, whether law schools truly teach their students to “think like a lawyer” has not been previously subjected to empirical analysis.

This article is an empirical examination using logistic regression analysis of two different ...


Ca. Gov't Code §11135: A Challenge To Contemporary State-Funded Discrimination, Danfeng Koon Nov 2010

Ca. Gov't Code §11135: A Challenge To Contemporary State-Funded Discrimination, Danfeng Koon

Danfeng S.V. Koon

Racially disproportionate outcomes persist in our schools, hospitals, courts, and neighborhoods. While some of these disparities stem from historical inequalities, socio-economic differences, and individual behavior, considerable racial disparities persist, even after holding these factors constant. These disparities are particularly troubling because they are attributable to the unconscious biases embedded in the policies and practices of our public institutions and represent the most pernicious form of contemporary discrimination. This article argues that unlike other disparities, these “super disparities,” can and must be legally redressed. While federal redress for state-funded disparate impacts has been largely foreclosed after Alexander v. Sandoval, California Government ...


Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii Nov 2010

Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii

James J. Williamson II

In District of Columbia v. Heller, the Supreme Court found that a federal law that restricted the possession of handguns within a federal enclave to be in direct conflict with the Second Amendment, and therefore, unconstitutional. Two years after that decision, the Supreme Court, in McDonald v. City of Chicago, held that the Second Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment. In both cases, however, the High Court failed to articulate a standard of review by which future Second Amendment challenges should be adjudicated. This note argues that the appropriate standard of ...


Law As Referent, Craig Bateman Nov 2010

Law As Referent, Craig 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 ...


Can The Federal Reserve Adopt An Inflation Targeting Regime Under The Current Statutory Arrangements?, Hong Kyoon Cho Oct 2010

Can The Federal Reserve Adopt An Inflation Targeting Regime Under The Current Statutory Arrangements?, Hong Kyoon Cho

Hong Kyoon Cho

This paper discussed legal perspectives in institutional framework of central banking, keyed to monetary policy framework. The statutory objectives of monetary policy provide an environment under which the central bank can design its monetary policy framework, in that the choice of the monetary policy framework could lie within the scope of the spirits embodied in the statutory objectives of monetary policy. Monetary policy framework could illuminate legal aspects of debate, as specifically seen in the Federal Reserve’s case that has adopted not an explicit but an implicit monetary policy framework, namely the Just-Do-It approach. Under the current legal mandate ...


Judge Harold Baer's Quixotic Crusade For Class Counsel Diversity, Michael H. Hurwitz Oct 2010

Judge Harold Baer's Quixotic Crusade For Class Counsel Diversity, Michael H. Hurwitz

Michael H Hurwitz

In this comment, the author discusses the recent rulings of U.S. District Court Judge Harold Baer, Jr. directing that proposed class counsel provide evidence of its racial and gender diversity. After summarizing the provisions of Rule 23(g) of the Federal Rules of Civil Procedure that govern the appointment of class counsel, the author analyzes Judge Baer’s rulings in light of Rule 23(g)’s requirements. The author concludes that Judge Baer’s rulings are inconsistent with the Rule’s requirements and, instead, represent the judge’s effort to impose his own policy views over the interests of ...


Sexual Reorientation, Elizabeth Glazer Oct 2010

Sexual Reorientation, Elizabeth Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic ...


Non-Compactness And Voter Exchange; Towards A Constitutional Cure For Gerrymandering, Shlomo Angel Oct 2010

Non-Compactness And Voter Exchange; Towards A Constitutional Cure For Gerrymandering, Shlomo Angel

Shlomo Angel

No abstract provided.


Deconstructing The Marginalization Of “Underclass” Students: Disciplinary Alternative Education, I. India Geronimo Oct 2010

Deconstructing The Marginalization Of “Underclass” Students: Disciplinary Alternative Education, I. India Geronimo

I. India Geronimo

Disciplinary alternative education programs have the potential to marginalize students by separating and permanently tracking them out of the mainstream school system into an underclass of the educational community. The students who are funneled into alternative education programs are often those students who are perceived to be undesirable and low-achieving. Marginalizing these students is attractive because it: 1) is an immediate method for relieving school administrator fatigue; 2) it is an extension of the zero tolerance and punitive approach that has plagued the criminal justice system and is a politically attractive manner for administrators and politicians to appear “tough on ...


The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake Oct 2010

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily ...


Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss Sep 2010

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation ...


Gender Dimorphism In The U.S. Legal System: A “Post-Feminist” And Comparative Critique, James Wilets Sep 2010

Gender Dimorphism In The U.S. Legal System: A “Post-Feminist” And Comparative Critique, James Wilets

James D Wilets

There has been extensive jurisprudential literature positing that the structure, values and processes of the American legal and educational system, focusing heavily on adversarial battle among parties in court, and competition in law school, are fundamentally "male-centered." This "male-female" construct suggests that there is an essential dichotomy between the two genders with respect to resolving disputes that is reflected in the legal system, and that this male-female dichotomy is harmful to all participants and perhaps to justice itself.

This article expands upon this literature by arguing that many of the dysfunctional characteristics of the American legal system labeled "male" in ...


Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail?, Roberta Karmel Sep 2010

Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail?, Roberta Karmel

Roberta S. Karmel

ABSTRACT FOR “IS THE PUBLIC UTILITY HOLDING COMPANY ACT A MODEL FOR BREAKING UP THE BANKS THAT ARE TO-BIG-TO-FAIL?”

BY ROBERTA S. KARMEL

During the financial crisis of 2007-08 and the debates on regulatory reform that followed, there was general agreement that the “too-big-to-fail” principle creates unacceptable moral hazard. Policy makers divided, however, on the solutions to this problem. Some argued that the banking behemoths in the United States should be broken up. Others argued that dismantling the big banks would be bad policy because these banks would not be able to compete with universal banks in the global capital ...


International Civil Religion: Respecting Religious Diversity While Promoting International Cooperation, Amos Davis Sep 2010

International Civil Religion: Respecting Religious Diversity While Promoting International Cooperation, Amos Davis

Amos Prosser Davis

International civil religion grounds moral claims that permeate and transcend traditional religious paradigms. Given the inevitability of international interactions – interactions that cross geographic, religious, and cultural boundaries – our global society is in need of a universally endorsable framework that undergirds the United Nations international human rights regime. International civil religion provides that framework.

Numerous scholars and moral theorists have incrementally discerned the parameters of civil religion including, inter alia, Jean-Jacques Rousseau, Alexis de Tocqueville, Robert Bellah, Martin Marty, and Harold Berman. The tenets of international civil religion infuse the diplomatically drafted United Nations covenants and conventions on human rights, including ...


Fourth-Generation Environmental Law: Integrationist And Multimodal, Craig Anthony (Tony) Arnold Sep 2010

Fourth-Generation Environmental Law: Integrationist And Multimodal, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

Institutional arrangements to protect the environment, manage natural resources, or regulate other aspects of society and the environment are not merely matters of optimal institutional design or choice. These arrangements result, at least in substantial part, from the evolution of interconnected social, legal, and ecological systems that are complex, dynamic, and adaptive. This article makes the case that environmental law is evolving to become more integrationist and multimodal: the use of multiple modes and methods of environmental protection, often across multiple scales, but in integrated ways. Integrated multimodality is a feature of much of social life. Building on generational analyses ...


Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco Sep 2010

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions ...


Religious Rules: The Judeo-Christian Nature Of The Aba Model Rules And What It Means For The Legal Profession, Sarah Montana Hart Sep 2010

Religious Rules: The Judeo-Christian Nature Of The Aba Model Rules And What It Means For The Legal Profession, Sarah Montana Hart

Sarah Montana Hart

This article argues that the American Bar Association Model Rules of Professional Conduct are not only biased in favor of Judeo-Christian biblical values, but actually are religious rules based in the Bible. The religious nature of the Model Rules affects lawyers in several different ways. There must be awareness of and a conscious choice about the nature and effects that these rules have on law students, bar applicants, and practicing lawyers.


Engaging Law Students In Leadership, Faith Rivers James Sep 2010

Engaging Law Students In Leadership, Faith Rivers James

Faith R Rivers James

The new challenge of legal education is preparing civic-minded lawyers to assume leadership roles in their communities, law firms, the legal profession, and in the public square. Defined as the process of influencing and persuading others to achieve a common purpose, leadership describes the lawyers’ task with individual and organizational clients; considered as a characteristic of people in positions of power, lawyers often assume the mantle of leading organizations. Whether defined as process or position, lawyering involves leadership in the private sector or in the public realm. This article considers the progressive structure of a comprehensive law & leadership program, and ...


Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin Sep 2010

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Peter G. Danchin

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the ...


Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Strand Sep 2010

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues ...


May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori Ringhand, Paul Collins Aug 2010

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori Ringhand, Paul Collins

Lori A. Ringhand

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which ...


Cost-Benefit Analysis Of The Business Judgment Rule: A Critique In Light Of The Financial Meltdown, Todd Aman Aug 2010

Cost-Benefit Analysis Of The Business Judgment Rule: A Critique In Light Of The Financial Meltdown, Todd Aman

Todd M Aman

In 2008, the United States – indeed the whole world – suffered a devastating financial meltdown. We know now that a significant cause of the meltdown was that, in the face of numerous red flags, the managers of several venerable financial firms decided to take tremendous risks in the subprime mortgage market, and the directors of these firms did little or nothing to stop them. However, despite their actions, these managers and directors face little or no risk of personal liability because they are shielded by the business judgment rule and other liability reducing mechanisms, such as director exculpation statutes. Given the ...


Insulating Agencies: Avoiding Capture Through Institutional Design, Rachel Barkow Aug 2010

Insulating Agencies: Avoiding Capture Through Institutional Design, Rachel Barkow

Rachel E Barkow

So-called independent agencies are created for a reason, and often that reason is a concern with agency capture. Agency designers hope that a more insulated agency will better protect the general public interest against interest group pressure. But the conventional approach to independent agencies in administrative law largely ignores why agencies are insulated. Instead, discussions about independent agencies in administrative law have focused on three features that have defined independent agencies: whether their heads are removable at will or for cause by the President, whether they must submit regulations to the President’s Office of Information and Regulatory Affairs for ...


Sticky Slopes, David Schraub Aug 2010

Sticky Slopes, David Schraub

David Schraub

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces ...


The Path Of Posner's Pragmatism, Edward Cantu Aug 2010

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful ...


What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant Aug 2010

What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant

Aaron Christopher Bryant

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn ...