Law Commons^™

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Are Gender Stereotypes Bad For Women? Rethinking Antidiscrimination Law And Work-Family Conflict, Julie C. Suk

Julie C Suk

The work-family conflict is a significant barrier to women’s equality in the workplace. As many commentators have noted with envy, the United States stands apart from most European countries in its failure to give women a legal right to paid maternity leaves. This Article argues that the United States’ potential for reconciling the work-family conflict is undermined by the predominance of antidiscrimination law in tackling the problem. To expose this American idiosyncrasy, this Article develops a thorough comparative analysis of successful European models for work-family reconciliation. The unique trajectory of U.S. antidiscrimination law has pushed family and medical leave into …

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower

Syrian Assassination & The Special Lebanon Tribunal: Political Necessity And The Filtering Of Justice, Charles B. Bowers

Charles Bowers

On February 14, 2005, Rafik Hariri and 21 others were killed when a massive car bomb exploded outside the St. George Hotel in Beirut, Lebanon. The highly-proficient assassination reeked of state sponsorship in general, and of Syrian involvement in particular. That said, as political realities regarding Syria’s role in current international security initiatives (e.g., the countering of Iran’s nuclear program) emerged, the integrity of the United Nations’ International Independent Investigation Commission (I.I.I.C.) was diluted. In light of the possible collapse of the Syrian regime (amongst other concerns) given an indictment of President Bashar al-Assad, many, including members of the U.N. …

March 13, 2009: Stem Cell Research, Bruce Ledewitz

Hallowed Secularism

Blog post, “Stem Cell Research“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

"Stationarity Is Dead" -- Long Live Transformation: Five Principles For Climate Change Adaptation Law, Robin K. Craig

Robin K. Craig

While there is no question that successful mitigation strategies remain critical in the quest to avoid worst-case climate change scenarios, we’ve passed the point where mitigation efforts alone can deal with the problems that climate change is creating. Because of “committed” warming – climate change that will occur regardless of mitigation measures, a result of the already-accumulated greenhouse gases in the atmosphere – what happens to social-ecological systems over the next decades, and most likely over the next few centuries, will largely be beyond human control. The time to start preparing for these changes is now, by making adaptation part …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

The Deportation Of Migrant Workers From Israel: Theory, Policy And The Law, Yossi Dahan

Yossi Dahan

This essay proposes a theoretical framework for understanding the deportation of tens of thousands of migrant workers from Israel between the years 1995 and 2005. To this end, it examines Israeli deportation policy based, inter alia, on an empirical study of hundreds of deportation cases litigated in the courts between 2001 and 2005. This examination demonstrates that the deportation campaign was designed to achieve two parallel goals: to lower labor costs by creating a large class of indentured workers through what has been referred to as the “binding arrangement” (a neo-liberal goal) and to deny the grant of civic status …

March 7, 2009: Day 2 Of The Conference, Bruce Ledewitz

Hallowed Secularism

Blog post, “Day 2 of the Conference“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Deliberative Democracy On Air: Reinvigorate Localism-Resuscitate Radio's Subversive Past, Akilah N. Folami

Akilah N Folami

Radio, once the vibrant center of deliberative democracy, is now widely regarded as a commercialized wasteland. As the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves, many scholars and media reformists attribute the commercial marginalization of radio to deregulation, and the resulting consolidation in radio ownership and homogenization of radio content. They argue for more local news and public affairs programming as a remedy to this problem. This article builds on such arguments but further posits that local music and popular cultural …

The ‘Growth Budget’: Disciplined And Responsible Government Spending For Future Prosperity, Neil H. Buchanan

Neil H. Buchanan

This essay considers how spending by the federal government can improve long-term living standards. The familiar concept of “capital budgeting” separates government expenditures into two categories: purchases of goods and services for current consumption that provide no long-term payoff (“operating expenditures”), and purchases of productive capital goods that do generate long-term payoffs (“capital expenditures”). Within that framework, I advocate expanding the range of possible public investments that would count as capital expenditures to include those that do not produce physical infrastructure but that nevertheless provide long-term economic benefits. Adding these items – such as spending on basic research, health care, …

“I Am A Bit Sickened”: Examining Archetypes Of Congressional War Crimes Oversight After My Lai And Abu Ghraib, Samuel L. Brenner

Samuel L Brenner

Following both the My Lai massacre during the Vietnam conflict and the Abu Ghraib prisoner abuse scandal during the Iraq War, many senators and representatives reacted in certain predictable ways by condemning atrocities and expressing horror or disgust at the evidence they had seen. At the same time, some of those same legislators denied that American forces had been involved with atrocities, attempted to foist blame on the victims or on a “small number” of bad soldiers, or suggested that examining American atrocities would be dangerous for American servicemen and for the United States generally. What is most startling about …

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been a fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President, and the major political parties have only nominated three others for president, all Democrats. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president-let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa Baird

Tonja Jacobi

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism of splitting existing majorities in future cases. Dissenting Justices can ‘signal’ to future litigants when this potential exists, to transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions where the dissenting Justice suggests that future cases ought to be framed in …

March 5, 2009: Impressions From Day 1 Of The New School Religion/Secular Conference, Bruce Ledewitz

Hallowed Secularism

Blog post, “Impressions from Day 1 of the New School Religion/Secular Conference“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Cornell Law Faculty Working Papers

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller

Scott A Keller

Administrative law doctrines for reviewing agency rulemaking currently give judges a significant amount of discretion to invalidate agency rules. Many commentators have recognized that this has politicized judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration.

This Article therefore argues for the elimination of the Supreme …

Secular Natural Law And The Normative Justification Of The State, Jeffery L. Johnson

Jeffery L Johnson

The article argues that a plausible normative justification of law and government can be constructed along the lines of the ancient natural law tradition. Rather than assuming the God of western theism, however, the article endorses a biologically based, and thoroughly secular, metaphysical basis for natural law.

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

The Long War, The Federal Courts, And The Necessity/Legality Paradox, Stephen I. Vladeck

University of Richmond Law Review

No abstract provided.

Navigating Policy By The Stars: The Influence Of Celebrity Entertainers On Federal Lawmaking, Linda Demaine

Linda Demaine

Celebrity entertainers such as actors, musicians and professional athletes have become increasingly engaged in social advocacy during the past few decades, publicly expressing their perspectives on core policy issues including public health and safety, the environment, and foreign policy. This Article presents the results of the first comprehensive empirical and qualitative study of one particularly powerful form of celebrity advocacy—testimony before the U.S. Congress. The study reveals that federal legislators have invited hundreds of celebrity entertainers to testify at congressional hearings on issues unrelated to their occupations and that the practice has endured without careful reflection on the role that …

Webster Plus One: Solving The "Impossible" Apportionment Debate, Mark M. Bell

Mark M Bell

Apportionment issues inevitably arise decennially. Consistent with historical trends, the debates concerning the upcoming 2010 apportionment have already begun to intensify. Deciding which apportionment method to use has generated intense debates among some of the most prominent figures in the Nation’s history. Most scholars believe that there is constitutional tension between two fundamental apportionment constraints: apportioning proportionally and representatively. It has been universally accepted that it is “impossible to satisfy both criteria.” In order to satisfy both criteria, an apportionment method must both, maintain quota, and avoid paradoxes. I postulate a new method, the “Webster Plus One” approach, that stands …

Bad Medicine, Brian K. Pinaire, Milton Heumann, Simon Burger

Brian K. Pinaire

This article provides the first-ever examination of the collateral consequences of felony convictions for physicians in the state of New York. We collected data from 4,739 records of disciplinary actions from 1990 2007 and coded them according to the infraction and the punishment given by the Board of Physician Medical Conduct, or BPMC. We also conducted extensive interviews with elites involved in all facets—and on both sides—of the disciplinary process. Four major findings flow from this research: (1) Of all the disciplinary records in New York, 50% of infractions were felonies and 50% were non-felonies, generally professional infractions; (2) Physicians …

Litigating Secrets: Comparative Perspectives On The State Secrets Privilege, Sudha Setty

Sudha Setty

The Article considers the history and use of the state secrets privilege in the United States and the ongoing congressional efforts to reform the use of the privilege. Although numerous articles have addressed the application of the state secrets privilege in the United States, this Article breaks new ground by examining the history and use of the privilege in other nations which confront serious national security threats. This Article considers the modern application the privilege in Scotland, England, Israel and India—an analysis which contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Nation Could Use Dose Of Meritocracy, John Capowski

John J. Capowski

No abstract provided.

The World Trade Constitutional Court, Sungjoon Cho

All Faculty Scholarship

The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …

Defining The Relationship Between Corruption And Human Rights, James Thuo Gathii

James Thuo Gathii

The relationship between corruption and human rights is only beginning to be seriously examined. A major premise of the ongoing research argues that corruption disables a State from meeting its obligations to respect, fulfill and protect the human rights of its citizens.

This study explores two other relationships between human rights and corruption. First, by showing how individualistic and procedural rights have been used to defeat investigations and prosecutions of corruption by high level governmental officials. Second, in demonstrating how anti-corruption reforms have primarily targeted the promotion market efficiency while reducing spending in meeting basic needs and rights such as …