The Distribution Of Political Faith,
2012
Yale Law School
The Distribution Of Political Faith, Jack M. Balkin
Maryland Law Review
No abstract provided.
The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality,
2012
Duke Law School
The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel
Faculty Scholarship
In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …
Direct And Indirect U.S. Government Debt,
2012
Duke Law School
Direct And Indirect U.S. Government Debt, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.
On Avoiding Avoidance, Agenda Control, And Related Matters,
2012
Columbia Law School
On Avoiding Avoidance, Agenda Control, And Related Matters, Henry Paul Monaghan
Faculty Scholarship
Legal scholars have long posited that, heuristically at least, two basic adjudicatory models – the dispute resolution model and the law declaration model – compete for the Court's affection along a wide spectrum of issues. The former focuses upon judicial resolution of actual disputes between litigants. Historically, that model has been underpinned by a premise, reflected in a wide range of doctrines, that significant barriers rightly exist to judicial review of the constitutionality of governmental conduct. By contrast, the law declaration model focuses on the Court itself not the litigants. Emphasizing the judicial authority to say what the law is, …
The Ppaca In Wonderland,
2012
Boston Univeristy School of Law
The Ppaca In Wonderland, Gary S. Lawson, David Kopel
Faculty Scholarship
The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …
Confrontation And Forensic Laboratory Reports, Round Four,
2012
University of Michigan Law School
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Articles
Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …
Adaptable Due Process,
2012
Elisabeth Haub School of Law at Pace University
Adaptable Due Process, Jason Parkin
Elisabeth Haub School of Law Faculty Publications
The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the …
Robert Taylor, An Appreciation,
2012
Duquesne University
Robert Taylor, An Appreciation, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
Communications Disruption And Censorship Under International Law: History Lessons,
2012
Dalhousie University Schulich School of Law
Communications Disruption And Censorship Under International Law: History Lessons, Jonathon Penney
Articles, Book Chapters, & Popular Press
With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored — telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking — and how the world community responded to that disruption or censorship through international law and law making. In …
Communications Disruption And Censorship Under International Law: History Lessons,
2012
Dalhousie University Schulich School of Law
Communications Disruption And Censorship Under International Law: History Lessons, Jonathon Penney
Articles, Book Chapters, & Popular Press
With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored — telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking — and how the world community responded to that disruption or censorship through international law and law making. In …
Charter Without Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms,
2012
Dalhousie University Schulich School of Law
Charter Without Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert Currie
Articles, Book Chapters, & Popular Press
The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation's consequential participation in inter-state efforts to combat it. The court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court's adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion of evidence …
Insecure Refugees: The Narrowing Of Asylum-Seeker Rights To Freedom Of Movement And Claims Determination Post-9/11 In Canada,
2012
Schulich School of Law, Dalhousie University
Insecure Refugees: The Narrowing Of Asylum-Seeker Rights To Freedom Of Movement And Claims Determination Post-9/11 In Canada, Constance Macintosh
Articles, Book Chapters, & Popular Press
This chapter has a modest goal: to track some legislative changes since 9/11 which impact on two rights of asylum-seekers where those changes are linked to or justified by security concerns. These are the rights of asylum-seekers to have their claim determined, and to not be detained. This article identifies how legislation restricting these key rights of asylum-seekers has largely been promoted as necessary for Canada to be able to protect its public from criminality and security threats. The article thus queries whether measures, especially those introduced under Bill C-11, The Balanced Refugee Reform Act and those proposed under Bill …
The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue,
2012
Boston University School of Law
The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue, Wendy K. Mariner
Faculty Scholarship
No abstract provided.
Representing Injustice: Justice As An Icon Of Woman Suffrage,
2012
Boston University School of Law
Representing Injustice: Justice As An Icon Of Woman Suffrage, Kristin Collins
Faculty Scholarship
In this Essay, written as part of a symposium on Judith Resnik’s and Dennis Curtis's sumptuously illustrated volume Representing Justice, I offer a historically sensitive interpretation of the figure of Justice in woman suffrage spectacle and propaganda. American suffragists were drawn to Justice as a symbol of women's claim to political and legal rights. Why? Surely one reason is that, as Resnik and Curtis demonstrate, by the early twentieth century Justice had ascended as a distinctively resonant symbol of law and law's legitimacy in a democratic polity. Precisely because Justice was a legible symbol of law's legitimacy, she was ripe …
Virtual Child Pornography: The Children Aren't Real, But The Dangers Are; Why The Ashcroft Court Got It Wrong,
2012
Seton Hall Law
Virtual Child Pornography: The Children Aren't Real, But The Dangers Are; Why The Ashcroft Court Got It Wrong, Brian Goldblatt
Student Works
No abstract provided.
State Constitutional Prohibitions On Special Laws ,
2012
Wayne State University Law School
State Constitutional Prohibitions On Special Laws , Justin R. Long
Cleveland State Law Review
Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general laws” that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …
Judicial Foreign Relations Authority After 9/11,
2012
Fordham Law School
Judicial Foreign Relations Authority After 9/11, Martin S. Flaherty
NYLS Law Review
No abstract provided.
Exonerating The Innocent: Pretrial Innocence Procedures,
2012
U.S. Military Academy at West Point
Exonerating The Innocent: Pretrial Innocence Procedures, Tim Bakken, Lewis M. Steel
NYLS Law Review
No abstract provided.
Getting Back To The Fourth Amendment: Warrantless Cell Phone Searches,
2012
New York Law School
Getting Back To The Fourth Amendment: Warrantless Cell Phone Searches, Mireille Dee
NYLS Law Review
No abstract provided.
Building Democracy In Japan,
2011
Wesleyan University
Building Democracy In Japan, Mary Alice Haddad
Mary Alice Haddad
How is democracy made real? How does an undemocratic country create new institutions and transform its polity such that democratic values and practices become integral parts of its political culture? These are some of the most pressing questions of our times, and they are the central inquiry of Building Democracy in Japan. Using the Japanese experience as starting point, this book develops a new approach to the study of democratization that examines state-society interactions as a country adjusts its existing political culture to accommodate new democratic values, institutions and practices. With reference to the country's history, the book focuses on …
