Preliminary Warnings On 'Constitutional' Idolatry, 2015 Academia Sinica
Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones
Brian Christopher Jones
Contemporary societies covet the notion of a written constitution. Yet should Britain choose to draft one, can I offer this important suggestion: please, call it anything but a “Constitution”. This statement is only slightly made in jest; in fact, it is quite serious. Constitutional fetishism, constitutional worship or “constitutional idolatry”, as Michael Klarman refers to it, is nothing to take lightly. While there has been a copious amount of commentary on the prospects and potential form of a UK written constitution, in addition to its history and evolution, the possibility of constitutional fetishism or constitutional idolatry becoming a significant factor ...
Confrontational Contestation And Democratic Compromise: The Sunflower Movement And Its Aftermath, Brian Christopher Jones, Yen-Tu Su
Brian Christopher Jones
This piece describes the two conflicting governmental visions involved in the events surrounding the Taiwan Sunflower Movement, and attempts to justify the Movement from the perspective of democratic theory. In doing so we analyse the justifications Sunflower Movement leaders put forward for their occupation, and present a novel theory of “confrontational contestation”. The theory stems from the belief that the Sunflower Movement events represented a unique type of democratic disobedience, and new understandings regarding disobedience have emerged from these circumstances. The second part of our paper analyses the cases for and against prosecuting Sunflower Movement members. Ultimately, we decide that ...
Public Actors In Private Markets: Toward A Developmental Finance State, 2015 Cornell Law School
Public Actors In Private Markets: Toward A Developmental Finance State, Robert C. Hockett, Saule T. Omarova
Robert C. Hockett
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 fueling continuous ...
Why Marijuana Is Not Regulated Like Alcohol In Colorado: A Warning For States Seeking To Legalize Recreational Marijuana, 2015 University of Massachusetts - Dartmouth
Why Marijuana Is Not Regulated Like Alcohol In Colorado: A Warning For States Seeking To Legalize Recreational Marijuana, Angela Macdonald
Colorado is unique in a number of ways. Colorado hosts some of the best skiing and snowboarding in the world, was one of the first states in the nation to operationally legalize marijuana for recreational use, and Colorado has particular tax restrictions unlike any other state. While competing with world-class skiing may not be an option for all states, any state contemplating legalizing recreational marijuana in a similar manner to Colorado may want to consider what sets Colorado apart; how legalized recreational marijuana works for Colorado; and ways to address tax and regulation issues in new marijuana legalization efforts.
Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, 2015 Indiana Tech Law School
Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello
The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities ...
Can Dna Be Speech?, 2015 Charleston School of Law
Can Dna Be Speech?, Jorge R. Roig
Jorge R Roig
DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.
In this article we discuss myriad current and developing ways in which ...
The American Criminal Code: General Defenses, 2015 University of Pennsylvania Law School
The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten
There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”
The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority ...
Judicial Independence Without Accountability: The Paradox Of Egypt’S Judiciary, 2015 Texas A&M School of Law
Judicial Independence Without Accountability: The Paradox Of Egypt’S Judiciary, Sahar Aziz
Sahar F Aziz
Among the myriad questions surrounding the study of the “Arab Spring,” the one that has engendered much scholarly debate is “What happened to Egypt’s revolution?” Answers abound in explaining why Egypt today is more authoritarian than in the final years of the Mubarak regime. No single factor or theory suffices to explain the complex political, economic, and social forces intersecting over the past four tumultuous years. Indeed, scholars are likely to spend many years, if not decades, deconstructing the buildup to and aftermath of what is now coined the “January 25th Revolution.”
Accordingly, this Article cautiously proceeds to ...
Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, 2015 Indiana Tech Law School
Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello
The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a ...
Human-Focused Turing Tests: A Framework For Judging Nudging And Techno-Social Engineering Of Human Beings, 2015 Benjamin N. Cardozo School of Law, Yeshiva University
Human-Focused Turing Tests: A Framework For Judging Nudging And Techno-Social Engineering Of Human Beings, Brett M. Frischmann
Brett M. Frischmann
This article makes two major contributions. First, it develops a methodology to investigate techno-social engineering of human beings. Second, it investigates the ongoing behavioral law and economics project of nudging, which is a particular form of techno-social engineering.
Many claim that technology dehumanizes, but this article is the first to develop a systematic approach to identifying when technologies dehumanize. The methodology depends on a fundamental and radical repurposing of the Turing test. The article develops an initial series of human-focused tests to examine different aspects of intelligence and distinguish humans from machines: (a) mathematical computation, (b) random number generation, (c ...
Coopted And Independent: The Paradox Of Egypt's Judiciary, 2015 Texas A&M School of Law
Coopted And Independent: The Paradox Of Egypt's Judiciary, Sahar Aziz
Sahar F Aziz
Among the myriad questions surrounding the study of the “Arab Spring,” the one that engenders much scholarly debate is “What happened to Egypt’s revolution?” Answers abound in explaining why Egypt today is more authoritarian than in the final years of the Mubarak regime. No single factor or theory suffices to explain the complex political, economic, and social forces intersecting over the past four tumultuous years in Egypt’s history. Indeed, scholars are likely to spend many years, if not decades, deconstructing the buildup to and aftermath of what is now coined the “January 25th Revolution.”
Accordingly, this Article ...
The Legal Community’S Most Elusive Task: Codifying A Universal Definition Of “Terrorism.”, 2015 Regent University
The Legal Community’S Most Elusive Task: Codifying A Universal Definition Of “Terrorism.”, Jennifer Breedon
The international community has been, and remains, unable to prevent episodes of mass murder resulting for modern-day terrorist ideologies due to three basic failures: (1) the failure to face the problem squarely and understand its real nature, (2) the failure to recognize that it is possible to prevent mass murder of individuals, and (3) the failure to act once knowledge of the violent intent of perpetrators is recognized. This paper will face these challenges by uncovering the fundamental issues underlying the failure of the international community to adopt a uniform and transnational definition of modern-day terrorism boldly and honestly. Terrorism ...
Funding Programs That Work: Lessons From The Federal Home Visiting Program, 2015 University of Missouri
Funding Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters Jr.
Philip G. Peters Jr.
Congress spends hundreds of billions of dollars each year on social programs. Many don’t work. Congress and the President have called for greater reliance on evidence-based programs. Thus far, however, only one major federal program conditions state access to formula-based federal funding on the use of evidence-based practices--the Maternal, Infant, and Early Childhood Home Visiting Program. In this Article, I examine the extent to which this initial effort has succeeded, concluding that Congress has taken a promising first step, but that attainment of its objective will require more demanding proof standards than those contained in the current Home Visiting ...
California’S Good Samaritan Law: Correcting Ambiguities To Induce Action, 2015 University of California - Davis
California’S Good Samaritan Law: Correcting Ambiguities To Induce Action, Sara Popovich
This Note argues that California should amend its Good Samaritan law by either creating a duty to assist or clarifying the statute. It first outlines the history of Good Samaritan law in California and describe developments in the law through today. It then argues that Good Samaritan law in California is ineffective because citizens still fear legal liability and thus refuse to assist during emergencies. Finally, it proposes specific changes to the California Good Samaritan law.
From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, 2015 SelectedWorks
From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel 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 ...
Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, 2015 University of Michigan Law School
Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand
Michigan Law Review
The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the ...
Through The Lens Of Innovation, 2015 University of Alabama School of Law
Through The Lens Of Innovation, Mirit Eyal-Cohen
The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of innovation. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Innovation turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviations as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Using ...
Law, Fugitive Capital, And Karl Polanyi's The Great Transformation, 2015 the john marshall law school
Law, Fugitive Capital, And Karl Polanyi's The Great Transformation, Walter J. Kendall Lll
walter j kendall lll
No abstract provided.
Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, 2015 SelectedWorks
Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel 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 ...
Agencies, Courts, And The Limits Of Balancing, 2015 Berkeley Law
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Daniel A Farber
Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.
This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these ...