Social and Behavioral Sciences Commons^™

Split Definitive, Lawrence Baum, Neal Devins

Neal E. Devins

For the first time in a century, the Supreme Court is divided solely by political party.

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 …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

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

Bruce Ledewitz

Using Social Norms As A Substitute For Law, Bryan H. Druzin

Bryan H. Druzin

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 …

Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin

Patrick Martin

In February of 2011, Governor of Ohio John Kasich signed legislation that created JobsOhio. This has been a controversial program based on the method that it was implemented and some of the rules that govern the program.it. In November of 2013, ProgressOhio, a citizens advocacy group, challenged the constitutionality of the program but the suit was dismissed by the Ohio Supreme Court for lack of standing by the plaintiffs. There has been no court decision that adjudicates the program on the merits, only on the jurisdictional standing of a party to a suit that challenged the legislation. To date, only …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

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 …

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 …

Healthy, Wealthy, And Wise: How Corporate Power Shaped The Affordable Care Act, Kevin A. Young, Michael Schwartz

Kevin Young

No abstract provided.

Structuring Big Data To Facilitate Participation In International Law, Roslyn Fuller

Roslyn Fuller

This is an interdisciplinary article focusing on the interplay between information and communication technology (ICT) and international law (IL). Its purpose is to open up a dialogue between ICT and IL practitioners that focuses on the ways in which ICT can enhance equitable participation in international legal structures, particularly through capturing the possibilities associated with big data. This depends on the ability of individuals to access big data, for it to be structured in a manner that makes it accessible and for the individual to be able to take action based on it.

Intellectual Property Policy, Matthew Rimmer

Matthew Rimmer

The Difficult Problem Of Nonpoint Nutrient Pollution: Could The Endangered Species Act Offer Some Relief?, Zdravka Tzankova

Zdravka Tzankova

Nutrient pollution of rivers, streams, lakes, and estuaries is one of the preeminent water quality issues in the United States today, and poses a significant threat to the health of aquatic ecosystems. Agricultural nonpoint discharges, the runoff of nitrogen and phosphorous from animal manure and chemical fertilizers, are the primary sources of such nutrient pollution.

A pervasive and long-standing problem, nonpoint pollution, nutri- ent and otherwise, has proven to be one of the toughest challenges in contemporary environmental regulation. This situation is significantly attributable to the political and administrative dynamics of fragmented regulatory authority. The power to control such nonpoint …

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

The United Nations And War In The Twentieth And Twenty-First Centuries, Robert Weiner

Robert Weiner

The United Nations was created in 1945 to prevent another world war. It was designed, as the Preamble to the Charter states, to eliminate the scourge of war. The failure to agree on a permanent UN international army meant that the UN had to improvise in dealing with wars. Peacekeeping, which is not mentioned anywhere in the UN Charter, had to be invented. This study investigates how peacekeeping has evolved through four “generations,” culminating in Unsanctioned multinational forces consisting of “coalitions of the willing.” The study also stresses how one of the greatest peacekeeping failures of the UN in the …

In The Jungle Of Cities [Review Of The Book Harold Washington And The Neighborhoods: Progressive City Reform In Chicago, 1983-1987], Nick Salvatore

Nick Salvatore

[Excerpt] At first glance such a spatial transformation of work may seem positive, as indeed it was for the largely white work force that left the city and staffed these new positions. But left behind geographically, economically, and socially were the largely black (and to a lesser extent, Mexican) working-class residents. It was at this juncture, with jobs disappearing and the urban social structure fragmented, that black Chicago, symbolized in the person of Harold Washington, finally assumed political power. In Harold Washington and the Neighborhoods, editors Pierre Clavel and Wim Wiewel have collected a group of essays that examine the …

Agrarian Reform And Philippine Political Development, Frede G. Moreno, Susana Evangelista Leones

Frede G Moreno

Landownership problem and control of resources remains as a political development issue in the Philippines. Agrarian reform is a necessary condition for agricultural modernization and rural industrialization and the fundamental mooring for global competition. Agrarian Reform has contributed to improvement of the socio-economic conditions of landless farmers and political development of the Philippines in terms of engaging the landless in the process of policy making and distribution of large private landholdings to the landless. Modalities giving peasants a stake in society such as decisive role in agrarian legislations, engaging them in dialogue to resolve agrarian cases, presenting manifesto pinpointing their …

The Role Of Science In The Uruguay Round And Nafta Trade Disciplines, David A. Wirth

David A. Wirth

The central theme of this article is the necessity for deference to decision-making processes of national regulatory authorities in the application of these new trade disciplines and the need for trade-based reviews of national regulatory measures to operate within clearly defined limits. Accordingly, this article first examines and summarizes the relevant texts, including the original 1947 GATT, the Uruguay Round, and the NAFTA texts on standards. Next, the article considers the role of science in the standard-setting process with reference to the copious literature on this topic. Finally, the article takes up the difficult question of the application of the …

At War With The Environment, David A. Wirth

David A. Wirth

In this Article, Professor Wirth reviews the book National Defense and the Environment by Stephen Dycus, a recognized expert in both environmental and national security law. The emphasis of the book is on containing and remediating the environmental excesses of the American defense-industrial complex, with a domestic policy focus. While Professor Wirth considers Dycus’ work an intellectually rewarding and refreshing new entry into the ongoing environment-as-security colloquy, he does not consider the book to be accessible to a general audience given the book’s fundamentally legalistic nature.

The Three Economies: An Essay In Honor Of Joseph Sax, Zygmunt J.B. Plater

Zygmunt J.B. Plater

How does one evaluate the important public values and impacts of things that do not have a market price and then integrate them into the fabric of our system of social governance? That question lies within most or all of Joseph Sax's work over the years. The first part of this article represents an attempt to distill some of Joseph Sax's intellectual dimensions, beyond those already chronicled in the comments of other contributors to this symposium, with some linked themes and observations drawn from Sax beyond his writings. The second part, instigated by several of Sax's articles, presents "The Three …

Can The Esa Address The Threats Of Atmospheric Nitrogen Deposition? Insights From The Case Of The Bay Checkerspot Butterfly, Zdravka Tzankova, Dena Vallano, Erika Zavaleta

Zdravka Tzankova

The Bay Checkerspot Butterfly reached its threatened status largely as a result of habitat loss through development. The species now benefits from the habitat pro- tection powers of the Endangered Species Act, yet the biggest new hazard to the survival of remaining Bay Checkerspot Butterfly populations may come from atmospheric nitrogen deposition. Driven by combustion and agricultural emissions, such deposition is an important cause of change in ecosystem structure and function, including potentially critical changes in the remaining Bay Checkerspot Butterfly habitat. We use the Bay Checkerspot Butterfly case to examine whether the Endan- gered Species Act, as it currently …

Don’T’ Know Much About History: Constitutional Text, Practice, And Presidential Power, David A. Schultz

David A Schultz

Assertions of presidential supremacy and power in affairs often invoke history, including events during the administration of George Washington, to defend their assertions. This article raises some questions regarding what we can learn from history for constitutional argument. It concedes generally that historical facts can support or buttress constitution argument, but more specifically it contends that acts undertaken by George Washington are problematic assertions for presidential power, especially those that assert “supremacist” or broad if not exclusive claims for presidential foreign policy authority. To do that, this article first describes how history is employed as constitutional argument for presidential power. …

Contesting The Dinosaur Image: The Labor Movement’S Search For A Future, Richard W. Hurd

Richard W Hurd

[Excerpt] But the increased effectiveness of labor's political activities has not resulted in major improvements legislatively, and now there is a hostile President who opposes nearly every aspect of the union policy agenda. The promise for the future lies in the demonstrated ability to mobilize at the grassroots. But there are recent signs that national unions are breaking ranks and pursuing narrow self interest. The USWA joined with the steel industry to persuade the Bush administration to restrict imports, and even hinted at a possible endorsement for his reelection in 2004 (Murray). The UMWA has praised the president's energy policy, …

Getting Foothold In Politics, Professor Vibhuti Patel

Professor Vibhuti Patel

The 73rd and 74th Amendments in the Constitution of India made one million Indian women “elected representatives” in the rural and urban local self government bodies by granting 33% reserved seats in Panchayati Raj Institutions in 1992. During last 16 years, many grassroots activists of the women’s movement have plunged in electoral politics for empowerment of women in their constituency. But when it comes to women’s reservation in legislature and parliament of India, we witness tremendous resistance from the patriarchs. For the first time, the Bill providing 33% reservation to women was introduced on 4 September 1996 known as 81st …

The Political Consequences Of Legal Victories: Ballast Regulation And The Clean Water Act, Zdravka Tzankova

Zdravka Tzankova

Federal conservation policy has seen a new development recently: the use of the Clean Water Act (CWA) as a tool for regulating ballast water discharges from ships and, thereby, for preventing biological invasions caused by the discharge of nonindigenous organisms in ballast. Some outcomes of this new method for regulating ballast water discharge are obvious, others are much less so. Superimposing CWA regulatory authority on an already existing system of U.S. ballast law and regulation is likely to change the politics of ballast regulation. What do such changes in regulatory politics spell for the future of regulatory protections against biological …

Through The Looking Glass: The Politics Of Estate Tax Reform, Edward J. Mccaffery

Edward J McCaffery

This brief article summarizes an argument that the estate tax reform or repeal debate has always been about money: not the government’s money from the tax, which is modest at best, but the politicians money from campaign contributions elicited to retain or repeal the tax. The article uses that theory to predict likely short term legislative developments.

A Primary Human Challenge, Carroy U. Ferguson

Carroy U "Cuf" Ferguson, Ph.D.

We may ask why, at both the individual and collective levels, it has seemed so difficult for us to choose to evolve our human games with Joy. There is no one answer for such a question, for each of us has the gift of free will. I will suggest, however, that built into our human games is what I call a primary human challenge. That primary human challenge is a dynamic tension, flowing from our creative urge for the freedom “to be” who we really are in our current physical form, and simultaneously to embrace our responsibility for our Being-ness.

Military Commissions Act Of 2006, Arsalan M. Suleman

Arsalan Suleman

On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA). Congress passed the MCA to authorize the trial by military commissions of detained terrorism suspects after the Supreme Court's decision in Hamdan v. Rumsfeld invalidated the military commissions previously established pursuant to a 2001 military order from President Bush. The MCA adds chapter 47A to title 10 of the U.S. Code to give statutory authorization for the military commissions. This Recent Development explores some of the more controversial aspects of the MCA, especially those sections that respond to the Court's Hamdan decision. The note …

The Opacity Of Transparency, Mark Fenster

Mark Fenster