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Full-Text Articles in Public Law and Legal Theory

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson Oct 2018

A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson

Faculty Scholarship at Penn Law

It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent ...


Taxonomy Of Minority Governments, Lisa La Fornara Oct 2018

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds ...


"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer Oct 2018

"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer

Seattle University Law Review

Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This Article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts. The analysis is overdue. Humanities scholars ...


State Action And The Constitution's Middle Band, Louis Michael Seidman Oct 2018

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer Sep 2018

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

Faculty Scholarship at Penn Law

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent ...


It's Tax Not Trade (Stupid), Edward J. Mccaffery Sep 2018

It's Tax Not Trade (Stupid), Edward J. Mccaffery

Edward J McCaffery

Globalization, trade and other free market policies increase wealth. But the gains from trade are not being evenly spread among all citizens. People and politicians rage against foreigners. But it is the United States tax system, not trade, that ought to change, and wealthy Americans, not workers world-wide, who should be sharing the wealth. A nd it is the form of tax, not just its rate structure, that must reform, so that capital at last bears a meaningful share of the burden.


Neurohype And The Law: A Cautionary Tale, Stephen J. Morse Sep 2018

Neurohype And The Law: A Cautionary Tale, Stephen J. Morse

Faculty Scholarship at Penn Law

This chapter suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.


Medical Board Of California, Kayla Watson, J. D. Fellmeth Aug 2018

Medical Board Of California, Kayla Watson, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme Aug 2018

Board Of Pharmacy, Mariam J. Saleh, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme Aug 2018

Veterinary Medical Board, Bryan Yerger, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth Aug 2018

California Board Of Accountancy, Anna V. Randall, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme Aug 2018

State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth Aug 2018

Bureau For Private Postsecondary Education, Daniel Ballinger, R. C. Fellmeth, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Department Of Insurance, J. D. Fellmeth Aug 2018

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.


Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme Aug 2018

Board Of Registered Nursing, Ashkan Hayatdavoudi, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.


Punitive Preemption And The First Amendment, Rachel Proctor May Aug 2018

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique ...


The Legal Foundations Of White Supremacy, Erika Wilson Aug 2018

The Legal Foundations Of White Supremacy, Erika Wilson

DePaul Journal for Social Justice

No abstract provided.


Hidden In Plain View: Juries And The Implicit Credibility Given To Police Testimony, Jonathan M. Warren Aug 2018

Hidden In Plain View: Juries And The Implicit Credibility Given To Police Testimony, Jonathan M. Warren

DePaul Journal for Social Justice

No abstract provided.


Discriminatory Nationality Laws Must Be Eliminated In Order To Eradicate Statelessness, Neda Shaheen Aug 2018

Discriminatory Nationality Laws Must Be Eliminated In Order To Eradicate Statelessness, Neda Shaheen

DePaul Journal for Social Justice

No abstract provided.


Ageism, Human Rights, And The European Court Of Human Rights: A Critical Analysis Of The Carvalho V. Portugal Case (2017), Israel Doron Prof. Aug 2018

Ageism, Human Rights, And The European Court Of Human Rights: A Critical Analysis Of The Carvalho V. Portugal Case (2017), Israel Doron Prof.

DePaul Journal for Social Justice

No abstract provided.


“I Made A Huge Mistake With My Life” – The Harms Of Prostitution As Mis-Reflected In Israeli Law, Gal Amir, Shulamit Almog Aug 2018

“I Made A Huge Mistake With My Life” – The Harms Of Prostitution As Mis-Reflected In Israeli Law, Gal Amir, Shulamit Almog

DePaul Journal for Social Justice

No abstract provided.


Safety From Flawed Forensic Sciences Evidence, Boaz Sangero Aug 2018

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system ...


Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu Aug 2018

Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu

Georgia State University Law Review

This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.

Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.


The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako Aug 2018

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers ...


Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby Aug 2018

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply ...


Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon Aug 2018

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


James Wilson As The Architect Of The American Presidency, Christopher S. Yoo Jul 2018

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

Faculty Scholarship at Penn Law

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment ...


Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters Jul 2018

Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters

Faculty Scholarship at Penn Law

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...


Special Interest Influence Under Direct Versus Representative Democracy, John G. Matsusaka Jul 2018

Special Interest Influence Under Direct Versus Representative Democracy, John G. Matsusaka

University of Southern California Legal Studies Working Paper Series

The ability of economic interest groups to influence policy is a common theme in economics and political science. Most theories posit that interest group power arises from the ability to influence elected or appointed government officials through vote-buying, lobbying, or revolving doors; that is, by exploiting the representative part of democracy. This raises the question: does special interest influence decline when policy is chosen using direct democracy, without involvement of representatives? An analysis of the content of the universe of state-level ballot initiatives during 1904-2017 reveals that business interests have been worse off as a result of initiatives across major ...


Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow Jun 2018

Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow

Articles

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice ...