Law and Society Commons^™

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias …

Foundations Of Human Rights And Development: A Critique Of African Human Rights Instruments, Joseph M. Isanga

Joseph Isanga

This Article argues that, of the contemporary human rights theories, sustainable African development necessitates grounding human rights in complete alignment with the broader perspective of natural law theory, as opposed to narrower perspectives such as utilitarian, positivist, and kindred theories.3 Part I presents pertinent philosophical theories and modes of analysis in conjunction with general international legal jurisprudence. Part II then uses this philosophical analysis to examine specific African human rights instruments and jurisprudence. Part III considers African traditional human rights conceptions. Part IV recommends a natural law foundation for African development. [excerpt]

Review Of The Fight For Fair Housing: Causes, Consequences And Future Implications Of The 1968 Federal Fair Housing Act, Tim Iglesias

Tim Iglesias

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz

Bruce Ledewitz

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson

Stephen E Henderson

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

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

Donald J. Kochan

The "Majestic Equality" Of The Law: Why Constitutional Strategies Do Not Produce Equality, Harry Arthurs

Harry Arthurs

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth …

The Future Of Governmental Ethics: Law And Morality, Jon L. Mills

Jon L. Mills

Based on a speech presented at the 16th International Symposium on Economic Crime, Cambridge University, England September 13-19, 1998.

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

California’S Good Samaritan Law: Correcting Ambiguities To Induce Action, Sara Popovich

Sara Popovich

This Note argues that California should amend its Good Samaritan law by either creating a duty to assist or clarifying the statute. It first outlines the history of Good Samaritan law in California and describe developments in the law through today. It then argues that Good Samaritan law in California is ineffective because citizens still fear legal liability and thus refuse to assist during emergencies. Finally, it proposes specific changes to the California Good Samaritan law.

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

Harold A. McDougall III

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

Civil Rights Plaintiffs And John Doe Defendants: A Study In § 1983 Procedure, Howard M. Wasserman

Howard M Wasserman

No abstract provided.

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

Karen M. Tani

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 …

A Quantum Congress, Jorge R. Roig

Jorge R Roig

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, …

Hope In The Law, Annelise Riles

Annelise Riles

No abstract provided.

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Robert C. Hockett

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

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 …

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Robert C. Hockett

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.” This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

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 Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Commentary On Presentations Of Prof. Roberta S. Karmel & Prof. James A. Fanto, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.