The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, 2013 University of Maryland Francis King Carey School of Law
The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin
Faculty Scholarship
Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more …
A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, 2013 University of Maryland Franics King Carey School of Law
A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron
Faculty Scholarship
On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …
Re-Problematizing Anger In Domestic Violence Advocacy, 2013 University of Colorado Law School
Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell
Publications
Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …
Law Among The Sight Lovers, 2013 University of the Pacific McGeorge School of Law
Law Among The Sight Lovers, Francis J. Mootz Iii
NYLS Law Review
No abstract provided.
Abolition Of The Insanity Defense Violates Due Process, 2013 University of Pennsylvania Carey Law School
Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie
All Faculty Scholarship
This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …
Judicial Independence: New Challenges In Established Nations, 2013 Berkeley Law
Judicial Independence: New Challenges In Established Nations, Martin Shapiro
Indiana Journal of Global Legal Studies
Because courts are both conflict-resolving and lawmaking bodies, they should be both independent and accountable. This paradox of incidence and accountability cannot be resolved but only addressed by various and shifting pragmatic accommodations between independence and accountability. Prosecutors, trial courts, appeals courts, and constitutional courts are each subject to differing consideration in arriving at such accommodations.
Moreover, courts, as courts of law, are not independent but are agents of statutory and constitutional lawmakers. Excessive emphasis on judicial independence creates the danger that authoritarian regimes may achieve a cloak of legitimacy for their laws by having them enforced by independent judiciaries. …
The Judicial Reform In China: The Status Quo And Future Directions, 2013 KoGuan Law School,
The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong
Indiana Journal of Global Legal Studies
This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …
International Legal Positivism And Legal Realism, 2013 Valparaiso University School of Law
International Legal Positivism And Legal Realism, D. A. Jeremy Telman
Law Faculty Publications
This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.
With its forthright embrace of the inescapability of uncertainty in law, the new international legal …
Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, 2013 University of Akron School of Law
Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn
Wilson R. Huhn
Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.
“Dealing With The Appellate Caseload Crisis”: The Report Of The Federal Courts Study Committee Revisited, 2013 Senior Judge, U.S. Court of Appeals for the Second Circuit
“Dealing With The Appellate Caseload Crisis”: The Report Of The Federal Courts Study Committee Revisited, Roger J. Miner
NYLS Law Review
No abstract provided.
Deleuze And The Maiden: A Short Introduction To Legal Pornology, 2013 Benjamin N. Cardozo School of Law
Deleuze And The Maiden: A Short Introduction To Legal Pornology, Laurent De Sutter
NYLS Law Review
No abstract provided.
Arrested By The Image, 2013 University of Melbourne
Visualizing The Law In The Baroque Age: The Play Of Value And The Law: Image And Comedy At The End Of Louis Xiv’S Reign, 2013 University of Paris Ouest Nanterre La Défense and the Institut Universitaire de France
Visualizing The Law In The Baroque Age: The Play Of Value And The Law: Image And Comedy At The End Of Louis Xiv’S Reign, Christian Biet
NYLS Law Review
No abstract provided.
The Law Of The Image And The Image Of The Law: Colonial Representations Of The Rule Of Law, 2013 Australian National University College of Law, Research School of Humanities and the Arts, Australian National University
The Law Of The Image And The Image Of The Law: Colonial Representations Of The Rule Of Law, Desmond Manderson
NYLS Law Review
No abstract provided.
Images In/Of Law, 2013 Suffolk University Law School
Image And Affect: Between Neo-Baroque Sadism And Masochism, 2013 Birkbeck College of University of London
Image And Affect: Between Neo-Baroque Sadism And Masochism, Nathan Moore
NYLS Law Review
No abstract provided.
Devising Law: On The Philosophy Of Legal Emblems, 2013 Benjamin N. Cardozo School of Law
Devising Law: On The Philosophy Of Legal Emblems, Peter Goodrich
NYLS Law Review
No abstract provided.
Developing A Durable Right To Health Care, 2013 Georgia State University College of Law
Developing A Durable Right To Health Care, Erin C. Fuse Brown
Faculty Publications By Year
The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. …
Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., 2013 St. Mary's University
Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., Patrick S. Metze
St. Mary's Law Journal
The consolidation of the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC) into the Texas Juvenile Justice Department (TJJD) in 2011, produced a unified state juvenile justice agency to promote public safety first and to produce positive outcomes for youth, families, and communities second. As Professor Metze’s second paper discussing ways to effect a change in the School-to-Prison Pipeline, he first highlights the progress of TJJD’s use of Positive Behavioral Interventions and Supports (PBIS) in the Texas juvenile correctional context as continued evidence that such techniques, if effective in the correctional setting, will certainly work in the …
Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, 2013 Duke Law School
Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels
Faculty Scholarship
A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.
International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …