Public Law and Legal Theory Commons^™

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

ExpressO

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign’s power, enable the sovereign to make such commitments. This essay advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems – undercommitment and overcommitment – between which they must steer: an actor that can bind itself …

Constitutionalism Through The Looking Glass Of Latin America, Miguel Schor

ExpressO

This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article …

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Why "Bad" Patents Survive In The Market And How Should We Change?--The Private And Social Costs Of Patents, Jay P. Kesan

ExpressO

In this paper, we formally demonstrate that incorrectly issued patents can survive in the market without judicial review, even when the invention is neither novel nor non-obvious. We support this contention by presenting a game theoretic model that studies the interaction between the patentee and an alleged infringer/challenger. Using this model, we demonstrate the impact of the transaction costs in the patent system at the administrative stage in the Patent Office and at the enforcement stage in the courts, and highlight the inability in our current system to mount effective challenges to improperly granted patents in the current system. We …

The Deep Structure Of Law And Morality, Robin B. Kar

ExpressO

This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor …

Gender Construction And The Limits Of Liberal Equality, Gila Stopler

Gila Stopler

This article will suggest a possible answer to the puzzling question of why despite the egalitarian principles upon which Western liberal democracies are allegedly predicated sex discrimination in these societies persists and sex discrimination on the basis of religion and culture is most often even countenanced and protected. I argue that the gendered structure of liberal society and of the liberal self, within which we all operate, serve as a framework within which different roles, different obligations and different paths for men and for women, in both liberal and non-liberal societies, seem natural and inevitable and therefore in no need …

The Liberal Bind: The Conflict Between Women’S Rights And Patriarchal Religion In The Liberal State, Gila Stopler

Gila Stopler

Surveying the relationship between religion and the state in the US and in European liberal democracies the article distinguishes between five different facets of the relationship between religion and the state in liberal democracies - institutional differentiation between religion and the state, strong protection of religious liberty, the involvement of religion in politics, the extent of religious involvement in education and social services, and the levels of religious belief of individuals in society - and discusses how each of them affects women’s right to equality. The article argues that contrary to common assumptions the relationship between patriarchal religion and the …

Partisanship Redefined: Why Blanket Primaries Are Constitutional, Deidra A. Foster

Seattle University Law Review

In 2003, the Ninth Circuit Court of Appeals rendered a decision that would pave the way for drastic changes in Washington State's election process. In Democratic Party of Washington v. Reed, the court held that Washington's nearly seventy-year-old blanket primary was unconstitutional, and the Supreme Court declined to review the case. The Ninth Circuit professed to be bound by California Democratic Party v. Jones, the Supreme Court case that ruled California's blanket primary unconstitutional just three years earlier, ignoring the argument that Washington's blanket primary differed materially from California's. What followed was a melee of voter disapproval and …

Statute And Public Policy In Private International Law: Gambling Contracts And Foreign Judgments, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

This note argues that because there is a legal distinction between the public policy defence to the enforcement of foreign judgments under the common law and the corresponding defence in the Reciprocal Enforcement of Commonwealth Judgments Act, the prohibition against the enforcement of foreign wagering transactions under Singapore law is no longer founded on public policy.

Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang

Seattle University Law Review

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …

Book Review Of James Q. Whitman’S “Harsh Justice: Criminal Punishment And The Widening Divide Between America And Europe", Lloyd Bonfield

Other Publications

No abstract provided.

Principles Of Law And Economics, Daniel Cole, Peter Grossman

Peter Z. Grossman

No abstract provided.

Knowledge And Power In The Mechanical Firm: Planning For Profit In Austrian Perspective, Richard Adelstein

Richard Adelstein

A theory of central planning employing Austrian themes and applied to private firms and Taylorism.

Desafios Da Constituição Europeia À Teoria Constitucional, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The project of the “Treaty that establishes a Constitution for the Europe”, beyond its political consequences, puts some challenges to the classical constitutional theory. At first sight, it seems completely heterodox towards canon constitutional tendencies, and first of all in what concerns the constituent power classical theories. However, a more rigorous analysis of the history of the modern constitutionalism and its founding texts, mainly French, can lead us to detect very revealing bridges between the liberal modern constitutionalism of the XVIIIth century and the present constitution making of a codified European Constitution. The “treaty” formula that was adopted also represents …

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …