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Articles 61 - 80 of 80
Full-Text Articles in Public Law and Legal Theory
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
All Faculty Scholarship
Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …
The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee
The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee
All Faculty Scholarship
Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …
Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh
Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh
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Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …
The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo
The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo
All Faculty Scholarship
Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …
The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank
The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank
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No abstract provided.
Globalization And The Design Of International Institutions, Cary Coglianese
Globalization And The Design Of International Institutions, Cary Coglianese
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In an increasingly globalized world, international rules and organizations have grown ever more crucial to the resolution of major economic and social concerns. How can leaders design international institutions that will effectively solve global regulatory problems? This paper confronts this question by presenting three major types of global problems, distinguishing six main categories of institutional forms that can be used to address these problems, and showing how the effectiveness of international institutions depends on achieving “form-problem” fit. Complicating that fit will be the tendency of nation states to prefer institutional forms that do little to constrain their sovereignty. Yet the …
Filters And The First Amendment, R. Polk Wagner
Filters And The First Amendment, R. Polk Wagner
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Internet content filters -- promising a technological solution to the uniquely social problem of widespread availability of adults-only content on the Internet -- appear to shift the debate over control of "cyberporn" from the legislative to the technical. Yet a growing number of commentators are expressing serious reservations about the free speech implications of filters. In this Article, I note that the ever-changing relationship between technology, network economics, and legal doctrine in the new economic and ideological marketplace of Cyberspace will fundamentally impact any constitutional analysis. I argue that the existing literature's analytic reliance on expansive concepts of state action …
Social Contract Theory In American Case Law, Anita L. Allen
Social Contract Theory In American Case Law, Anita L. Allen
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No abstract provided.
A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii
A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii
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The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article …
In Defense Of The Model Penal Code: A Reply To Professor Fletcher, Paul H. Robinson
In Defense Of The Model Penal Code: A Reply To Professor Fletcher, Paul H. Robinson
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No abstract provided.
Immigration Policy, Liberal Principles, And The Republican Tradition, Howard F. Chang
Immigration Policy, Liberal Principles, And The Republican Tradition, Howard F. Chang
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No abstract provided.
The Right To Privacy In The Pennsylvania Constitution, Seth F. Kreimer
The Right To Privacy In The Pennsylvania Constitution, Seth F. Kreimer
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No abstract provided.
The Law Of Choice And Choice Of Law: Abortion, The Right To Travel, And Extraterritorial Regulation In American Federalism, Seth F. Kreimer
The Law Of Choice And Choice Of Law: Abortion, The Right To Travel, And Extraterritorial Regulation In American Federalism, Seth F. Kreimer
All Faculty Scholarship
No abstract provided.
Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman
Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman
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No abstract provided.
Four Predictions For The Criminal Law Of 2043, Paul H. Robinson
Four Predictions For The Criminal Law Of 2043, Paul H. Robinson
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The Model Penal Code has all the markings of an historic document. It is a sophisticated and enlightened model for penal reform that has put the United States in the front row of reformers. And many believe that the likes of such an historic reform will not come again for more than another century. In my view, it can hardly be disputed that the Code is an historic document. It is less clear, however, that we should not expect a dramatically different code before another century.
Rising Above Principle, Geoffrey C. Hazard Jr.
Rising Above Principle, Geoffrey C. Hazard Jr.
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No abstract provided.
Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp
Evolutionary Models In Jurisprudence, Herbert J. Hovenkamp
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Few ideas in intellectual history have been so captivating that they have overflowed the discipline from which they came and spilled over into everything else. The theory of evolution is unquestionably one of these. Evolution was an idea so powerful that it seemed obvious when Charles Darwin offered it. After all, there were prominent evolutionists a century before Darwin. Charles Darwin merely presented a model that made the theory plausible. It was a model, though, that infected everything, and one that appeared to answer every question worth asking, no matter what the subject. The model had the potential to lead …
Element Analysis In Defining Criminal Liability: The Model Penal Code And Beyond, Paul H. Robinson, Jane A. Grall
Element Analysis In Defining Criminal Liability: The Model Penal Code And Beyond, Paul H. Robinson, Jane A. Grall
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The pursuit of fairness and effectiveness has inspired and guided criminal code reformers of the past two decades. Because penal law protects the most important societal interests and authorizes the most serious sanctions the government may impose - the stigma of conviction, imprisonment, and even death - a criminal code, more than any other body of law, should be rational, clear, and internally consistent. Only a precise, principled code that sufficiently defines forbidden conduct can achieve its goals of condemnation and deterrence. Such a code gives citizens fair warning of what will constitute a crime, limits governmental discretion in determining …
A Brief History Of Distinctions In Criminal Culpability, Paul H. Robinson
A Brief History Of Distinctions In Criminal Culpability, Paul H. Robinson
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The Model Penal Code identifies five levels of culpable states of mind significant to criminal liability. Professor Robinson reviews the evolution and refinement of those distinctions and considers current and future implications of viewing the Model Penal Code scheme as one stage in a continuing development.
A Theory Of Justification: Societal Harm As A Prerequisite For Criminal Liability, Paul H. Robinson
A Theory Of Justification: Societal Harm As A Prerequisite For Criminal Liability, Paul H. Robinson
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All would agree that the criminal law seeks to prevent harmful results rather than to punish evil intent that produces no harm. If one views deterrence as the proper function of the criminal law, a harm requirement is appropriate. To the extent that the criminal law punishes nonharmful conduct, it weakens the stigma and deterrent effect of criminal conviction for harmful conduct. If a defendant who has caused no harm feels that he is punished unjustifiably, rehabilitative efforts will be hampered. Indeed, one may ask: If no harm has been caused, what harm will be deterred by punishment, and what …