Open Access. Powered by Scholars. Published by Universities.®

Public Law and Legal Theory Commons

Open Access. Powered by Scholars. Published by Universities.®

2,154 Full-Text Articles 1,288 Authors 945,373 Downloads 89 Institutions

All Articles in Public Law and Legal Theory

Faceted Search

2,154 full-text articles. Page 1 of 55.

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, yehezkel Margalit 2016 SelectedWorks

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi 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 ...


Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, yehezkel Margalit 2016 SelectedWorks

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi 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 ...


Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones 2015 Academia Sinica

Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones

Brian Christopher Jones

Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a "Constitution".

Difficulties arise because over ...


The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Reform, Stephen B. Burbank, Sean Farhang 2015 University of Pennsylvania Law School

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Reform, Stephen B. Burbank, Sean Farhang

Faculty Scholarship

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of ...


Disaggregating Corpus Christi: Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Or The Importance Of Toleration, Katharine Jackson 2015 Columbia University

Disaggregating Corpus Christi: Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Or The Importance Of Toleration, Katharine Jackson

Katharine Jackson

To date, much of the debate regarding Hobby Lobby boils down to an overly simplistic and dichotomous invective. On one side, progressives proclaim that for-profit businesses merit no rights – religious or otherwise. On the other side, advocates of religious freedom demand that such freedom must extend to any and all people, no matter how they choose to organize themselves. To get to the nut of the debate, though, we have to open the black box of group religious exercise. We must examine, as any proponents of liberal freedoms must, the impact of public policy and law on actual individuals, not ...


Exhibits To Accompany Testimony & Statement Of Dean Hill Rivkin Before The Senate Judiciary Committee (21 April 2015), Dean H. Rivkin 2015 University of Tennessee - Knoxville

Exhibits To Accompany Testimony & Statement Of Dean Hill Rivkin Before The Senate Judiciary Committee (21 April 2015), Dean H. Rivkin

College of Law Faculty Scholarship

Exhibits to accompany testimony and statement-of-record of Professor Dean Hill Rivkin (The University of Tennessee College of Law), as submitted on April 21, 2015, before a hearing convened by the U.S. Senate Committee on the Judiciary: “Improving Accountability and Oversight of Juvenile Justice Grants.”


The Law's Duty To Promote The Kinship System: Implications For Assisted Reproductive Techniques And For Proposed Redefinitions Of Familial Relations, Scott T. FitzGibbon 2015 Boston College Law School

The Law's Duty To Promote The Kinship System: Implications For Assisted Reproductive Techniques And For Proposed Redefinitions Of Familial Relations, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

Kinship relations, in our society and in most, are organized systematically. That is to say, each kinship connection is constructed, conducted, and considered, not in isolation but by reference to the others. Your uncle is your father’s brother, in just about the same way as your own sibling is your brother and your children are one another’s brothers and sisters. Your spouse is the mother or father of your children, in just about the same way as your mother and father are your parents and the parents of your siblings. One’s beliefs and expectations about what each ...


The Societal And Economic Impacts Of Recent Dramatic Shifts In State Marijuana Law: How Should Minnesota Proceed In The Future?, Andrew L. Scherf 2015 Hamline University School of Law

The Societal And Economic Impacts Of Recent Dramatic Shifts In State Marijuana Law: How Should Minnesota Proceed In The Future?, Andrew L. Scherf

Hamline University's School of Law's Journal of Public Law and Policy

No abstract provided.


Negotiation Ethics: Proposals For Reform To The Law Society Of Upper Canada's Rules Of Professional Conduct, George Tsakalis 2015 Brown and Partners LLP and Osgoode Hall Law School

Negotiation Ethics: Proposals For Reform To The Law Society Of Upper Canada's Rules Of Professional Conduct, George Tsakalis

Western Journal of Legal Studies

Creating a comprehensive code of negotiation ethics for lawyers is a contentious issue. The Law Society of Upper Canada’s Rules of Professional Conduct currently offers little guidance regarding appropriate behaviour of lawyers during negotiations. Detractors argue that the negotiation process is too complex and fluid to be codified. This criticism is not fatal to the case for a code of negotiation ethics. Lawyers have moral and ethical standards within the profession and responsibilities to the public as conduits to legal remedies. This paper argues a code of legal ethics is necessary to uphold these standards. Such a framework should ...


Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant 2015 University of Wollongong; Australian National University

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve ...


Confrontational Contestation And Democratic Compromise: The Sunflower Movement And Its Aftermath, Brian Christopher Jones, Yen-Tu Su 2015 Academia Sinica

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, Robert C. Hockett, Saule T. Omarova 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 ...


Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe 2015 University of Colorado Law School

Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe

Michigan Law Review

Our Constitution can change. We can amend it, update it, improve it. And so we have—twenty-seven times by one count, many more by another. Everyone recognizes this. But fewer people appreciate that the mechanics of constitutional change can change as well. A method of alteration unaddressed at the founding can grow into established practice. A procedure built into constitutional text can slip into disuse. As much as citizens can change the substance of the Constitution, they can also change the ways they change it. In Originalism and the Good Constitution, John McGinnis and Michael Rappaport make an elegant and ...


Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello 2015 Indiana Tech Law School

Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello

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?, Jorge R. Roig 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, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten 2015 University of Pennsylvania Law School

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

Faculty Scholarship

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, Sahar Aziz 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, Adam Lamparello 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

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, Brett M. Frischmann 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, Sahar Aziz 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 ...


Digital Commons powered by bepress