Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Alien tort (1)
- Article III (1)
- CIL (1)
- Condemnation (1)
- Constitutional law (1)
-
- Customary international law (1)
- Eminent domain (1)
- Federal courts (1)
- Filartiga (1)
- Independent Judiciary (1)
- Interest Group (1)
- International Law and International Relations (1)
- International law (1)
- Jurisdiction (1)
- Jurisprudence, Government, Courts, and Constitutional Law (1)
- Kelo (1)
- Landes (1)
- Law and economics (1)
- Law of nations (1)
- Posner (1)
- Property (1)
- Public Choice (1)
- Public use (1)
- Takings (1)
Articles 1 - 2 of 2
Full-Text Articles in Jurisprudence
Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan
Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan
Donald J. Kochan
Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a …
"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan
"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan
Donald J. Kochan
This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …