Digital Commons Network^™

Federalism: Executive Power In Wartime, Richard A. Epstein, Roger Pilon, Geoffrey R. Stone, John C. Yoo

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No abstract provided.

Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams

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No abstract provided.

Sex, Violence, And The First Amendment, Geoffrey R. Stone

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No abstract provided.

Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard E. Harcourt

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No abstract provided.

The Minnesota Fiscal Disparities Act Of 1971: The Twin Cities' Struggle And Blueprint For Regional Cooperation, Myron Orfield, Nicholas Wallace

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No abstract provided.

The International Intellectual Property Roots Of Geographical Indications, Ruth Okediji

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No abstract provided.

Common Law And Federalism In The Age Of The Regulatory State, Alexandra B. Klass

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Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the new federalism, such progressive common law development at the state level may be particularly timely and appropriate. This article uses …

Creating A Viral Federal Privacy Standard, A. Michael Froomkin

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No abstract provided.

Due Process Rights And Terrorist Emergencies, James W. Nickel

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This essay discusses the grounds for due process rights (DPRs) and the permissibility of suspending them during terrorist and other emergencies. The two topics are profitably treated together because DPRs - along with freedoms of movement, expression, and political participation - are often suspended or restricted when national emergencies occur. Although I present a strong case for DPRs as human rights, this justification does not settle their priority during emergency situations. That issue raises additional questions, and I discuss some of them. The overall thrust of the essay is to defend the importance of respecting DPRs during troubled times. The …

"Unchain The Children": Gault, Therapeutic Jurisprudence, And Shackling, Bernard P. Perlmutter

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No abstract provided.

Innocence, Race, And The Death Penalty, Barry Scheck

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The article argues that the death penalty in the United States is deeply flawed due to systemic issues such as wrongful convictions, racial disparities, and procedural failures. It emphasizes the critical role of DNA exonerations in revealing these injustices and advocates for reforms to address the root causes of wrongful convictions, including inadequate legal representation and flawed forensic science. The article also highlights the moral and financial costs of capital punishment, urging its abolition.

The Return Of Seditious Libel, Ronald J. Krotoszynski Jr., Clint A. Carpenter

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No abstract provided.

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

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A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

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Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

Misfearing: A Reply, Cass R. Sunstein

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No abstract provided.

Making America "The Land Of Second Chances": Restoring Socioeconomic Rights For Ex-Offenders, Deborah N. Archer, Kele Stewart

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No abstract provided.

Government Secrets, Constitutional Law, And Platforms For Judicial Intervention, Adam M. Samaha

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American law has yet to reach a satisfying conclusion about public access to information on government operations. But recent events are prompting reconsideration of the status quo. As our current system is reassessed, three shortfalls in past debates should be overcome. The first involves ignorance of foreign systems. Other democracies grapple with information access problems, and their recent experiments are illuminating. Indeed they expose two additional domestic weaknesses. One is a line we have drawn within constitutional law. Courts and commentators tend to treat constitutional issues of public access separately from those of executive discretion to withhold information, but these …

Blakely In Minnesota, Two Years Out: Guidelines Sentencing Is Alive And Well, Richard Frase

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The Supreme Court's decision in Blakely v. Washington' has produced some changes in sentencing law and practice in Minnesota, but after two years the basic structure of the state's pioneering sentencing guidelines system remains intact. Blakely caused much initial concern and uncertainty, but the dire predictions2 of catastrophic change or major retreat from progressive sentencing policy have not been borne out. This article examines the ways in which critical policy choices made before and after Blakely helped to preserve the most important features of the Guidelines. Part I shows how the design, implementation, and pre-Blakely evolution of the Guidelines served …

Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter

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It is time to rethink the role of Institutional Review Boards (IRBs) in approving social science research. While most law professors conduct their research in an almost unregulated environment - pouring through cases, statutes, and each other's articles, all without the kind of human interaction subject to IRB regulation - their colleagues elsewhere in the university have been coping for decades with an increasingly intrusive bureaucracy that sometimes undermines basic academic values. Three things seem very clear. First, there are a lot of IRBs - at least 4,000 - and their numbers are growing. Second, they have recently "increased their …

Weighing And Reweighing Eminent Domain's Political Philosophies Post-Kelo, Alberto B. Lopez

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No abstract provided.

Nineteenth-Century Free Exercise Jurisprudence And The Challenge Of Polygamy: The Relevance Of Nineteenth-Century Cases And Commentaries For Contemporary Debates About Free Exercise Exemptions, Clark B. Lombardi

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Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions.

Ignore The Rumors—Campaigning From The Pulpit Is Okay: Thinking Past The Symbolism Of Section 501(C)(3), Michael Hatfield

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This Article is enough to ruin many Thanksgiving family dinners. It is about American religion, politics, and taxes. Mostly it is about taxes. As I will explain, this is what sets it apart from the contemporary legal scholarship exploring the campaign restrictions on tax exempt churches. This Introduction identifies the problem addressed in the article, then introduces the contemporary legal scholarship and the alternative approach this article takes.

Part I of this Article introduces the reader to the legal context of "the problem" of churches being unable to campaign if they choose to be Tax Exempt under Section 501 (c) …

Syringes In The Sea: Why Federal Regulation Of Medical Waste Is Long Overdue, Chryssa V. Deliganis, Steve P. Calandrillo

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Medical waste is produced everywhere that people live and by almost everyone at some point in their lives. Its treatment and disposal implicates the environment, public health, the economy, human dignity, and aesthetics. With the many issues involved, the need for federal regulation of medical waste today is manifest.

This Article examines the problem of medical waste disposal and evaluates the current state-based approach to regulation. Although many states have implemented stringent medical waste programs with some success, the absence of direct federal regulation in this area is problematic. The need for national leadership is clear, especially with respect to …

Municipal Wireless: A Primer For Public Discussion, David M. Shein

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Though there is great diversity and continuing innovation in municipal networks, a number of distinct technological and economic approaches have emerged that are common to virtually all municipal and community deployments. This paper considers each major aspect of municipal wireless deployment in terms of how communities make decisions about each of these elements. We look first at some of the critical terms and technologies involved in this discussion, as well as the various concrete applications and benefits that wireless networks have to offer. We then consider the various organizational and managerial approaches that have been implemented. Finally we talk about …

Who Needs Freedom Of Religion?, James W. Nickel

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This article proposes that we view freedom of religion as a specific application area of more general basic liberties such as freedoms of thought, expression, association, assembly, movement, privacy, political participation, and economic activity. Separate enumeration of freedom of religion in national and international bills of rights may be useful, but it is not indispensable. In this respect freedom of religion is more like scientific freedom or artistic freedom than like freedom of expression. Recognizing that separate enumeration of freedom of religion is dispensable has salutary consequences for how we conceive and justify freedom as it applies to religion. First, …

First Circuit Upholds Reprosecution Of Defendant Acquitted In 'Sham' Trial, John Rappaport

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No abstract provided.

Political Trials In Domestic And International Law, Eric A. Posner

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Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …

Our 18th Century Constitution In The 21st Century World, Diane P. Wood

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In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an "unwritten Constitution" since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting …

Cross-National Measures Of Punitiveness, Alfred Blumstein, Michael Tonry, Asheley Van Ness

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No abstract provided.

State Sentencing Guidelines: Diversity, Consensus, And Unresolved Policy Issues, Richard Frase

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No abstract provided.