Jurisprudence Commons^™

The False Claims Act Creates A 'Zone Of Protection' That Bars Suits Against Employees Who Report Fraud Against The Government, Joel D. Hesch

Joel D. Hesch

May employees copy internal company documents and turn them over to the U.S. Department of Justice as part of applying for a whistleblower reward for reporting fraud against the Government? This is one of the most hotly contested issues facing whistleblowers and employers, and the answer will affect the future of the Government’s primary whistleblower reward program.

Each year, companies are cheating the military and Medicare by billions of dollars. To combat fraud, Congress enacted the federal False Claims Act (FCA), which is the primary anti-fraud tool used by the Department of Justice (DOJ) and the fastest growing ...

Does Political Islam Conflict With Secular Democracy? Philosophical Reflections On Religion And Politics, David Ingram

Philosophy: Faculty Publications and Other Works

Abstract: This paper rebuts the thesis that political Islam conflicts with secular democracy. More precisely, it examines three sorts of claims that ostensibly support this thesis:

(a) The Muslim religion is incompatible with secular democracy;

(b) No Muslim country has instituted secular democracy; and

(c) No movement seeking to advance its agenda as aggressively as political Islam does can do so with the degree of moderation required of a political party that is committed to secular democracy.

Theologians, philosophers, and political scientists have debated (a) through (c) within the jurisdiction of their respective fields. I propose to combine these debates ...

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests other ...

Artistic And Cultural Practices In Urban Spaces: Law, Justice, Contestation, Matilda Arvidsson, Peter Bengtsen

Matilda Arvidsson

For the 2013 Critical Legal Conference, we sent out a call for papers which dealt with different perspectives on artistic and cultural practices in the transitional and contested territory of urban public space. With nearly 50 abstracts received from all over the world, the response to our call was overwhelming. Ethnographers, sociologists, art historians, architects, artists, and cultural entrepreneurs wanted to engage with law. Interestingly, judging from the abstracts, legal scholars seemed less concerned with engaging in a discussion of artistic expressions, as few responded to the call. Departing from this experience we seek to approach the urban space, art ...

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court ...

Freedom Of Association And The Right To Contest: Getting Back To Basics, Alan Bogg, Cynthia L. Estlund

New York University Public Law and Legal Theory Working Papers

As worker participation through trade unions has declined across much of the developed world, especially in the US, the UK and Canada, scholars and activists have turned to the concept of "freedom of association" (FOA) -- defined in international labour law as the fundamental right of workers to form and join trade unions of their own choosing -- as a basis for reclaiming a voice for workers in economic governance. Much of this work pursues what we call a strategy of ascent: to what extent does the existing FOA as defined in international and national labour law encompass constitutionalised rights to collective ...

The Interdisciplinary Party, Hanoch Dagan, Roy Kreitner

Tel Aviv University Law Faculty Papers

The inaugural issue of Critical Analysis of Law: An International & Interdisciplinary Law Review (cal.library.utoronto.ca) is an opportunity to reflect on the distinctive contribution of legal theory to the interaction between law and its neighboring disciplines. This brief exploratory essay suggests that interrogating the law as a set of coercive normative institutions serves as a useful point of orientation for disciplinary interaction. In particular, we suggest that attention to coercive normative institutions can help legal scholars in the tasks of selecting extra-disciplinary materials, integrating those materials into legal analysis, and synthesizing various disciplinary contributions.

Constitutionalism And Coercion, Frederick Schauer

Boston College Law Review

A common understanding of constitutionalism sees a constitution as a device for keeping self-serving, corrupt, misguided, incompetent, power-hungry, or otherwise bad officials from doing bad things. But an alternative vision of constitutionalism recognizes the role of a constitution in imposing second-order constraints on the well-intended and often wise policies and decisions of even good officials, and doing so in the service of a range of longer-term values often likely to be slighted given the incentives of day-to-day politics and policy making. Using a series of prominent Supreme Court cases as a springboard, this Article, the written version of the Clough ...

Legal Summaries , Emily Edwards

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Expropriatory Compensation, Distributive Justice, And The Rule Of Law, Hanoch Dagan

Tel Aviv University Law Faculty Papers

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the ...

Footnote Online Supplement: State Truancy Law Compilation, Dean H. Rivkin

College of Law Faculty Scholarship

This compilation of state truancy laws is being provided as a footnote supplement to the forthcoming article No Child Left Behind? Representing Youth and Families in Truancy Matters (2013) by Prof. Dean Hill Rivkin and Brenda McGee, of The Education Law Practicum at the University of Tennessee College of Law. It is an updated version of the laws listed in the Juvenile Law Center’s excellent amicus curiae brief in Bellevue School District v. E.S., Brief of Juvenile Law Center, et al., As Amicus Curiae on Behalf of Respondent, Bellevue Sch. Dist. v. E.S., 257 P.3d 570 ...

Constitutionalism And The Cosmopolitan State, Mattias Kumm

New York University Public Law and Legal Theory Working Papers

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn. Contrary to widely made implicit assumptions in constitutional theory and practice, national constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is integrated into and relates to the wider legal and political world. The drawing of ...

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Villanova University School of Law Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a ...

International Law: 'A Relatively Small And Unimportant' Part Of Jurisprudence?, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper evaluates and criticizes the account of international law given in Chapter Ten of H.L.A. Hart's book, The Concept of Law. Hart's account offers a few insights -- particularly on the relation between law and sanctions. But his account of international law is moistly quite impoverished. His observations about the absence of secondary rules (rules of change, adjudication, and recognition ) in international law are quite unjustified. His exaggeration of the difference between international law and municipal legal systems is so grotesquely exaggerated, as to deprive the former account of almost all its utility in jurisprudence. What ...

Deciding Together, Lewis A. Kornhauser

New York University Public Law and Legal Theory Working Papers

What protocol should participants in a collective decision making institution follow? Analysts often implicitly assume that each participant should decide as if she were deciding alone. This essay argues that, in many institutional contexts, the normatively appropriate protocol for deciding together differs from the protocol of deciding alone. The argument is developed through the analysis of two prominent collective decision institutions: the jury and the appellate court.

Deciding Together, Lewis A. Kornhauser

New York University Law and Economics Working Papers

What protocol should participants in a collective decision making institution follow? Analysts often implicitly assume that each participant should decide as if she were deciding alone. This essay argues that, in many institutional contexts, the normatively appropriate protocol for deciding together differs from the protocol of deciding alone. The argument is developed through the analysis of two prominent collective decision institutions: the jury and the appellate court.

Civility And Formality, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Civility is a distinctive virtue in social and political relations, not an all-embracing one. In this paper, I suggest that civility is also a "chilly" virtue, associated more with formality than with niceness; that is, I argue that its importance is best accounted for on this basis. I pursue the theme of formality in a number of different areas: formality in market relations; formality in political inclusiveness; formality in the willingness to listen and "stay present" for the articulation of views to which is utterly opposed; and formality in democratic deliberations. So defined, civility is not everything and it may ...

Taking Voluntariness Seriously, Ian P. Farrell, Justin F. Marceau

Boston College Law Review

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as ...

Freedom Of Contracts, Hanoch Dagan, Michael Heller

Tel Aviv University Law Faculty Papers

“Freedom of contracts” has two components: (1) the familiar freedom to bargain for terms within a contract and (2) the long-neglected freedom to choose from among contract types. Theories built on the first freedom have reached an impasse; attention to the second points toward a long-elusive goal, a liberal and general theory of contract law. This theory is liberal because it develops an appealing conception of contractual autonomy grounded in the actual diversity of contract types. It is general because it explains how contract values – utility, community, and autonomy – properly relate to each other across contract types. Finally, it is ...

Jurisprudence For Hedgehogs, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

The aims of this essay are, first, to present the jurisprudential position that Ronald Dworkin set out in his penultimate book, Justice for Hedgehogs (2011); and, secondly, to elaborate it a little further than Dworkin himself was able to. The position is a distinctive and interesting one. Although Professor Dworkin argued in all his earlier work that moral facts (about rights and justice) were among the truth conditions of legal propositions, now in Justice for Hedgehogs he argued that law is itself a branch of morality. This is a bolder and more radical claim and it requires some quite careful ...