Law and Politics Commons^™

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan

Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin

Patrick Martin

In February of 2011, Governor of Ohio John Kasich signed legislation that created JobsOhio. This has been a controversial program based on the method that it was implemented and some of the rules that govern the program.it. In November of 2013, ProgressOhio, a citizens advocacy group, challenged the constitutionality of the program but the suit was dismissed by the Ohio Supreme Court for lack of standing by the plaintiffs. There has been no court decision that adjudicates the program on the merits, only on the jurisdictional standing of a party to a suit that challenged the legislation. To date, only …

Heterodox Challenges To Consumption-Oriented Models Of Legislation, Luigi Russi, John Haskell

Luigi Russi

Consumption-oriented models of governance dominate the contemporary global legal architecture. The financial crisis beginning in 2008, however, poses fundamental questions about the future viability of these approaches to economics and law. This paper attempts to first, evaluate consumptionÕs salient historical development and themes from the post- World War II era to more recent legislative innovation, and second, introduce seven heterodox vignettes that challenge the hegemony of consumption in legislative policy. The paper concludes with some brief reflections upon potential opportunities and limitations of these heterodox traditions within future scholarship and policy addressing the interplay of law and consumption in global …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

Law In Regression? Impacts Of Quantitative Research On Law And Regulation, David C. Donald

David C. Donald

Quantitative research (QR) has undeniably improved the quality of law- and rulemaking, but it can also present risks for these activities. On the one hand, replacing anecdotal assertions regarding behavior or the effects of rules in an area to be regulated with objective, statistical evidence has advanced the quality of regulatory discourse. On the other hand, because the construction of such evidence often depends on bringing the complex realities of both human behavior and rules designed to govern it into simple, quantified variables, QR findings can at times camouflage complexity, masking real problems. Deceptively objective findings can in this way …

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

The Fed’S New Model Of Supervision For “Large Complex Banking Organizations”: Coordinated Risk-Based Supervision Of Financial Multinationals For International Financial Stability, Cynthia C. Lichtenstein

Cynthia C. Lichtenstein

Large internationally active financial institutions, in particular multinational banks, have the capacity to create profound disturbances in the globalized financial markets in the event of failure. For that reason, these entities are supervised and examined in a manner that is completely different than the ordinary business corporation. This piece describes the new methodology that has been developed by the United States' central bank, the Board of Governors of the Federal Reserve System or "the Fed" for short, since 1995, for examining what the Fed calls "large complex banking organizations" or LBCOs and indicates how the system in fact carries out …

You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan

Donald J. Kochan

With nonviolent revolution in particular, displaced governments leave a power and governance vacuum waiting to be filled. Such vacuums are particularly susceptible to what this Article will call “strategic ideological cooptation.” Following the regime disruption, peaceful chaos transitions into a period in which it is necessary to structure and order the emergent governance scheme. That period in which the new government scheme emerges is particularly fraught with danger when growing from peaceful chaos because nonviolent revolutions tend to be decentralized, unorganized, unsophisticated, and particularly vulnerable to cooptation. Any external power wishing to influence events in societies emerging out of peaceful …

Building Democracy In Japan, Mary Alice Haddad

Mary Alice Haddad

How is democracy made real? How does an undemocratic country create new institutions and transform its polity such that democratic values and practices become integral parts of its political culture? These are some of the most pressing questions of our times, and they are the central inquiry of Building Democracy in Japan. Using the Japanese experience as starting point, this book develops a new approach to the study of democratization that examines state-society interactions as a country adjusts its existing political culture to accommodate new democratic values, institutions and practices. With reference to the country's history, the book focuses on …

Compromising The Safety Net: How Limiting Tax Deductions For High-Income Donors Could Undermine Charitable Organizations, Patrick Tolan

Patrick E. Tolan Jr.

President Obama’s recent budget proposals have contemplated reducing the top rate for charitable deductions (and all itemized deductions) to twenty-eight percent. Because America’s largest donors are those in the highest marginal tax brackets, efforts to limit deductibility of charitable donations could have a chilling effect on charitable giving.

In this article the author looks at motivations for charitable donations and specifically at the impact of tax deductibility as a motivating factor. It takes a historical look at the philanthropic surveys and econometric models and examines empirical data concerning impacts of significant changes to the tax code in the 1980s that …

Corporate Integration, Tax Treaties, And The Division Of The International Tax Base: Principles And Practices., Hugh J. Ault

Hugh J. Ault

In this Article, Professor Ault begins with an examination of the evolution of treaty principles for the allocation of and restrictions on international taxing jurisdiction. He then focuses on how economically based principles dealing with the taxation of international income affect treaty policy and presents the basic structural provisions involving the taxation of foreign income and foreign investors that emerge from domestically enacted or proposed integration systems. The technical aspects of the actual treaty practices that have been implemented with respect to integration systems are then related to the theoretical discussion. Professor Ault concludes with an examination of the implications …

[Review Of The Book Social Security: A Critique Of Radical Proposals], Gary S. Fields

Gary S Fields

[Excerpt] This book consists of six essays on Social Security. Charles Meyer leads off with a survey of the history of Social Security, its funding problems, and a radical reform proposal by Peter Ferrara to phase out the system. The remaining essays address various features of Social Security.

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

George D. Brown

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and …

Qatar, Al Jazeera, And The Arab Spring, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

No abstract provided.

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

David A. Wirth

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of precaution as …

The Role Of Science In The Uruguay Round And Nafta Trade Disciplines, David A. Wirth

David A. Wirth

The central theme of this article is the necessity for deference to decision-making processes of national regulatory authorities in the application of these new trade disciplines and the need for trade-based reviews of national regulatory measures to operate within clearly defined limits. Accordingly, this article first examines and summarizes the relevant texts, including the original 1947 GATT, the Uruguay Round, and the NAFTA texts on standards. Next, the article considers the role of science in the standard-setting process with reference to the copious literature on this topic. Finally, the article takes up the difficult question of the application of the …

At War With The Environment, David A. Wirth

David A. Wirth

In this Article, Professor Wirth reviews the book National Defense and the Environment by Stephen Dycus, a recognized expert in both environmental and national security law. The emphasis of the book is on containing and remediating the environmental excesses of the American defense-industrial complex, with a domestic policy focus. While Professor Wirth considers Dycus’ work an intellectually rewarding and refreshing new entry into the ongoing environment-as-security colloquy, he does not consider the book to be accessible to a general audience given the book’s fundamentally legalistic nature.

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Kent Greenfield

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. …

Estimating The Effects Of Changing Social Security Benefit Formulas, Gary S. Fields, Olivia S. Mitchell

Gary S Fields

[Excerpt] The U.S. Social Security system faces serious financial difficulties in both the short and the long run. The short-run problem is that the system has very meager financial reserves. In the long run—after the year 2010, when the post-World-War-II baby-boom generation reaches retirement age—the financial problems of Social Security will intensify because of population aging and the consequent decline in the ratio of workers to retirees.

These problems have led to proposed reforms aimed at assuring the financial stability of the system. The question addressed here is: what effects would these reforms have on three variables—retirement ages, retirement incomes, …

The Misuse Of Tax Incentives To Align Management-Shareholder Interests, James R. Repetti

James R. Repetti

The U.S. tax system contains many provisions which are intended to align management of large publicly traded companies more closely to stockholders. This article shows that many of the tax provisions that have been adopted are of questionable effectiveness because they fail to address the complexities of stockholder-management relations in attempting to motivate management to act in the best interests of stockholders. The article proposes that rather than Congress attempting to identify the best way that it can use the tax system to motivate management, Congress should eliminate tax provisions which subsidize management's inefficiencies in order to encourage stockholders, themselves, …

Coal Law From The Old World: A Perspective On Land Use And Environmental Regulation In The Coal Industries Of The United States, Great Britain, And West Germany, Zygmunt J.B. Plater

Zygmunt J.B. Plater

America’s reentry into the Coal Age has been one of the major consequences of the Mideast oil-producing nations’ discovery of their collective marketing power, and in this new emphasis on coal the United States is not alone. Like the United States, many industrialized nations with domestic coal reserves had allowed their coal industries to languish under the influence of low-priced, petroleum based energy economy and are now hastening to strengthen their coal production. Different nations approach the regulation of their resurgent coal industries in varying ways, however, and these differences can be instructive to American observers, particularly as they relate …

Law, Media, & Environmental Policy: A Fundamental Linkage In Sustainable Democratic Governance, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The functional linkages between law and media have long been signficant in shaping American democratic governance. Over the past thirty-five years, environmental analysis has similarly become essential to shaping international and domestic governmental policy. Environmentalism—focusing as it does on realistic interconnected accounting of the full potential negative consequences as well as benefits of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public interest …

The Three Economies: An Essay In Honor Of Joseph Sax, Zygmunt J.B. Plater

Zygmunt J.B. Plater

How does one evaluate the important public values and impacts of things that do not have a market price and then integrate them into the fabric of our system of social governance? That question lies within most or all of Joseph Sax's work over the years. The first part of this article represents an attempt to distill some of Joseph Sax's intellectual dimensions, beyond those already chronicled in the comments of other contributors to this symposium, with some linked themes and observations drawn from Sax beyond his writings. The second part, instigated by several of Sax's articles, presents "The Three …