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The Politics Of International Judicial Appointments, Erik Voeten

Chicago Journal of International Law

This Article evaluates what we know about the politics of international judicial appointments and identifies some areas for future research. Although the conclusion offers some discussion of the normative implications of this research, this is deliberately not an attempt to identify how the appointment process should work, but rather an exploration of if and how governments do use the appointment process to shape the international judiciary. Theoretically, the Article draws from the broad framework of principal-agent theory, in which governments are the multiple principals and judges the multiple agents. This framework does not assume that the agents always do what …

Happiness And Punishment, Jonathan Masur, John Bronsteen, Christopher Buccafusco

Articles

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …

No Way Out? The Question Of Unilateral Withdrawals Or Referrals To The Icc And Other Human Rights Courts, Michael P. Scharf, Patrick Dowd

Chicago Journal of International Law

This Article addresses the consequent issue: What if a state, self-referring or referring the situation in another country, changes its mind and attempts to "withdraw" its ICC referral? What is the role and appropriate response of the ICC at that point? This issue becomes especially relevant and pressing as events in Uganda unfold and the possibility looms of an attempted "withdrawal" of Uganda's referral. This Article examines the Rome Statute, the drafting history, and the expert commentaries, together with the statutory and case law of the other major human rights courts and bodies, and the Vienna Convention on the Law …

Herring V. United States: A Minnow Or A Shark Term Paper, Albert W. Alschuler

Articles

No abstract provided.

Two Ways To Think About The Punishment Of Corporations, Albert W. Alschuler

Articles

No abstract provided.

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

Articles

No abstract provided.

The Modernizing Mission Of Judicial Review, David A. Strauss

Articles

Constitutional interpretation, as it is usually conceived, looks to the past-to an old text, to history, to precedent, to tradition-in an effort to limit political majorities But over the last generation or so, a different approach to the Constitution has emerged. That approach, which might be called modernization, tries to anticipate trends in public opinion instead of taking lessons from the past; and a modernizing court, instead of facing down popular majorities, yields when it finds out that it has misgauged public opinion. This modernizing approach has characterized the Supreme Court's recent work in many disparate areas, including, among others, …

Rethinking The Connection Between Developmental Science And Juvenile Justice, Emily Buss

Articles

No abstract provided.

Gun Control After Heller: Threats And Sideshows From A Social Welfare Perspective, Jens Ludwig, Adam M. Samaha, Philip J. Cook

Articles

What will happen after District of Columbia v. Heller? We know that five justices on the Supreme Court now oppose comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and maybe only at the time of, self-defense. Perhaps the justices will push further and apply Heller's holding to state and local governments via the Fourteenth Amendment. But the majority opinion in Heller offered limited guidance for future cases. It did not follow a purely originalist method of constitutional interpretation, nor did it establish a constraining doctrinal framework for evaluating firearms regulation-although the …

Rethinking The Connection Between Developmental Science And Juvenile Justice (Reviewing Rethinking Juvenile Justice By Elizabeth S. Scott, Laurence Steinberg), Emily Buss

University of Chicago Law Review

No abstract provided.

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

Chicago Journal of International Law

On July 10, 2008, International Criminal Court ("ICC") Prosecutor Luis Moreno-Ocampo informed members of the UN Security Council that he would be issuing an indictment against Sudanese President Omar Hassan al Bashir on charges of genocide and crimes against humanity for events in Darfur. The indictment, issued July 14, brought into stark relief the consequentialist debate over international criminal justice. Opponents of impunity celebrated the possibility that the international community might at last be willing to take concrete steps toward ending the Darfur genocide. On the other hand, aid groups on the ground feared retaliation and expulsion, and diplomats argued …

Ambiguous Statutes, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

Judge Frank Easterbrook is known for insisting that legislative intent is a misconception, bordering on oxymoron. He has also advanced the idea that legislative bargains should be upheld by courts and that where a legislature leaves a "gap," courts should be non-activis rather than eager gap-fillers. Still, there are many cases where legislation leaves ambiguities. I suggest that the cause of an ambiguity has some bearing on the best way for a judge to resolve it. Easterbrook decisions, including an Equal Pay Act case, where (unequal) wages were based on prior compensation, are used to reveal various strategies for dealing …

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

The Political Economy Of Criminal Law And Procedure: The Pessimists' View, Richard H. Mcadams

Public Law and Legal Theory Working Papers

In The Pathological Politics of Criminal Law, Bill Stuntz provides a powerful critique of the modern American criminal justice system. Other commentators have criticized legislatures for constantly adding to an already overbroad set of criminal prohibitions. Stuntz explains the political dynamic that makes this outcome inevitable. The ultimate result is that the modern prosecutor defines what is criminal by her selection of cases to charge, while criminal legislation is a mere “side-show.” Stuntz concludes that this state of affairs is “lawless” and pathological. As a solution, he proposes that courts resurrect or expand certain constitutional doctrines to reclaim some of …

Law School Announcements 2008-2009, Law School Announcements Editors

Announcements

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Studying The Exclusionary Rule: An Empirical Classic, Albert W. Alschuler

University of Chicago Law Review

No abstract provided.

Determining "Reasonableness" Without A Reason? Federal Appellate Review Post: "Rita V United States", Sherod Thaxton

University of Chicago Law Review

No abstract provided.

Supposons Que La Discipline Et La Securite N'Existent Pas~ Rereading Foucault's College De France Lectures, Bernard E. Harcourt, Paul Veyne

Public Law and Legal Theory Working Papers

No abstract provided.

Burden Of Proof For Employee Numerosity Under § 1981a Statutory Damage Caps, Bryan Hart

University of Chicago Law Review

No abstract provided.

Abolition In The U.S.A. By 2050: On Political Capital And Ordniary Acts Of Resistance, Bernard E. Harcourt

Public Law and Legal Theory Working Papers

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states—states that have historically carried out few or no executions—probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international law, practiced …

Beyond Judicial Minimalism, Cass R. Sunstein

Public Law and Legal Theory Working Papers

Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Coase-Sandor Institute for Law & Economics Research Paper Series

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states—states that have historically carried out few or no executions—probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international law, practiced …

Beyond Judicial Minimalism, Cass R. Sunstein

Coase-Sandor Institute for Law & Economics Research Paper Series

Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they …

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Public Law and Legal Theory Working Papers

No abstract provided.

Is There A Common Law Necessity Defense In Federal Criminal Law?, Stephen S. Schwartz

University of Chicago Law Review

No abstract provided.

Predicting Crime, M. Todd Henderson, Justin Wolfers, Eric Zitzewitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Prediction markets have been proposed for a variety of public policy purposes, but no one has considered their application in perhaps the most obvious policy area: crime. This paper proposes and examines the use of prediction markets to forecast crime rates and the impact on crime from changes to crime policy, such as resource allocation, policing strategies, sentencing, postconviction treatment, and so on. We make several contributions to the prediction markets and crime forecasting literature. First, we argue that prediction markets are especially useful in crime rate forecasting and criminal policy analysis, because information relevant to decisionmakers is voluminous, dispersed, …

Human Welfare, Not Human Rights, Eric A. Posner

Public Law and Legal Theory Working Papers

Human rights treaties play an important role in international relations but they lack a foundation in moral philosophy and doubts have been raised about their effectiveness for constraining states. Drawing on ideas from the literature on economic development, this paper argues that international concern should be focused on human welfare rather than on human rights. A focus on welfare has three advantages. First, the proposition that governments should advance the welfare of their populations enjoys broader international and philosophical support than do the various rights that are incorporated in the human rights treaties. Second, the human rights treaties are both …

The Political Economies Of Criminal Justice (Reviewing Governing Through Crime: How The War On Crime Transformed American Democracy And Created A Culture Of Fear By Jonathan Simon), Mariano-Florentino Cuéllar

University of Chicago Law Review

No abstract provided.

Law School Record, Vol. 54, No. 2 (Spring 2008), Law School Record Editors

Law School Record

• David Park Currie: 1936-2007
• Fifty Years of Clinical Legal Education at Chicago Law
• Mikva Retires from Clinic Service
• The Tax Mirage
• Faculty Books - How Judges Think: A Conversation with Judge Richard Posner