Public Law and Legal Theory Commons^™

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

Sean Farhang

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

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 …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented 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 …

Correctional Discharge Planning & The Missing Linkages, D'Andre D. Lampkin

D'Andre Devon Lampkin

This research project explores correctional rehabilitation and disconnects between correctional facilities and linkage to follow up mental health treatment. One of the components to releasing inmates is providing them with services that help reintroduce them into society. For the mentally ill, linkage to mental health services after spending any amount of time in a correctional facility is heavily dependent on follow through by the former inmate and the expediency and capacity of the mental health departments’ outpatient facilities within the community the former inmate is released into.

3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom

Evan R. Youngstrom

Today, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must be …

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Alani Golanski

I agree with Dworkin that there is widespread theoretical disagreement in law. I hope to show, however, why this disagreement should not be seen as moral in nature. Legal philosophers have nearly always viewed the existence of theoretical disagreement in law as the indicium of moral dispute. If that is so, and if such disagreement is widespread, then this would be compelling evidence of law’s incorporation of moral standards. Thus, theoretical disagreement has posed a powerful challenge to the "positivist" approach, which claims that, for the most part, legality can be determined without resort to moral criteria. This paper draws …

Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley

Jill M. Fraley

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Howard M Wasserman

No abstract provided.

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Targeted Killing: A Legal And Political History, Markus Gunneflo

Markus Gunneflo

Looking beyond the current debate’s preoccupation with the situations of insecurity of the second intifada and 9/11, this book reveals how targeted killing is intimately embedded in both Israeli and US statecraft and in the problematic relation of sovereign authority and lawful violence underpinning the modern state system. The book details the legal and political issues raised in targeted killing as it has emerged in practice including questions of domestic constitutional authority, the norms on the use of force in international law, the law of targeting and human rights. The distinctiveness of Israeli and US targeted killing is accounted for …

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

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

Sungjoon Cho

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

Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan

Donald J. Kochan

Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones

Brian Christopher Jones

Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a "Constitution". Difficulties arise because over …

Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi

Mark L Noferi