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Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

"Losers"

We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

No abstract provided.

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

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 …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances where agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance …

Stewardship And Dominium: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

Losers' Law: A Metatheory for Legal Disappointments

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

"Losers"

We are all losers at one time or another. If you're in "economy class," you can't use the "business class" toilet, even if it's located just two steps in front of your seat. You must instead go to the back of the plane and use the toilets designated for economy class passengers. The operative rule prohibits you, as a mere economy class passenger, from exercising the much more convenient choice of using the business class …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

The American legal system generates losers every day. Our adversarial system of litigation practically guarantees that every lawsuit will produce a winner and a loser. When the legislature or the people directly through initiatives enact legislation that further restricts land use, landowners hoping for greater land development options are transformed into losers as well.

Losers can choose to voice their grievances, to exit the system, or to resort to illegal behavior. But once voice is exercised, and exit and illegality are rejected as viable choices, we want losers to select "acceptance" of their losses, because this helps to maintain the …

Why Arizona Senate Bill 1070 Is Constitutional And Not Preempted By Federal Law, Calvin Lionel Lewis, David Strange, Michael Blake Downey

Calvin L. Lewis

WHY ARIZONA SENATE BILL 1070 IS CONSTITUTIONAL AND NOT PREEMPTED BY FEDERAL LAW ABSTRACT On April 23, 2010, Arizona Governor Janet Brewer signed into law a bill titled the “Support Our Law Enforcement and Safe Neighborhoods Act,” commonly referred to as “SB 1070.” The law was designed to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” This law, along with a set of amendments, set off a firestorm of controversy nationwide, including street protests, economic boycotts, court challenges, and political posturing. The controversy centers around the broad …