Digital Commons Network^™

New Developments For Conjunctive Management In Idaho: Why Our Expanding Understanding Of Science Should Expand How We Address The Doctrine Against Waste In Idaho Water Right Transfers, Dylan R. Hedden-Nicely

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No abstract provided.

Sustainability Starts Locally: Untying The Hand Of Local Governments To Create Sustainable Economies, Jerrold A. Long

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Constitutional Concepts For The Rule Of Law: A Vision For The Post-Monarchy Judiciary In Nepal, David Pimentel

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A new government has taken power in Nepal. Intent on replacing the monarchical Hindu state with a secular democracy, it has promised a new constitution. Although the Nepali government is currently operating under an Interim Constitution, it remains to be seen what the post-monarchy judiciary will look like. Those involved in the drafting should pay careful attention to how specific provisions for court governance will impact both institutional and decisional judicial independence. The Interim Constitution calls for a judicial council but not a sufficiently independent one. The Interim Constitution also allows broad exercise of emergency powers, depriving the courts of …

Pulling Teeth: The State Of Mandatory Immigration Detention, Geoffrey Heeren

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Law Clerking: My Favorite Year, Donald L. Burnett Jr.

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Iqbal, Twombly, And The Expected Cost Of False Positive Error, Mark Anderson

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Iqbal and Twombly introduced a new standard for pleading federal claims by overruling five-decades old language from Conley v. Gibson. Instead of plaintiffs being entitled to discovery unless the complaint affirmatively forecloses the possibility of recovery, Iqbal and Twombly require a more searching evaluation of the complaint under an ambiguous "plausibility" standard. The policy behind this increased burden on plaintiffs is to prevent the false positive error that burdensome discovery creates. How the plausibility standard from Iqbal and Twombly should operate in the real world is poorly understood. There is general acknowledgement that no clear guidance exists about how to …

The Art Of Statutory Interpretation: Identifying The Interpretative Theory Of The Judges Of The United States Court Of Appeals For Veterans' Claims And The United States Court Of Appeals For The Federal Circuit, Linda Jellum

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Taking The Good With The Bad: Recognizing The Negative Externalities Created By Charities And Their Implications For The Charitable Deduction, Shannon Weeks Mccormack

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The tax code allows taxpayers to deduct amounts donated to an extremely broad variety of organizations deemed to create societal benefits — that is, positive externalities. But many organizations that may receive tax-deductible contributions also cause harms. Both the tax code and subsidy theory, one of the most utilized scholarly theories developed to analyze the deduction from an economic and morally neutral perspective, fail to properly account for these negative externalities. In order to do so, one needs to look beyond the economic models utilized by subsidy theorists. For instance, there should be some limit to the types of harms …

The Case Against Shareholder Empowerment, William Wilson Bratton

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Many look toward enactment of the law-reform agenda held out by proponents of shareholder empowerment as a part of the regulatory response to the current financial crisis. This Article argues that the financial crisis exposes major weaknesses in the shareholder empowerment case. Our claim is that shareholder empowerment delivers management a simple and emphatic marching order: manage to maximize the market price of the stock. This is exactly what the managers of a critical set of financial firms did in recent years. They managed to a market that focused on increasing observable earnings, and, as it turned out, they failed …

Resistance: Contemporary Architecture:Sustaining Identity 2, Jim Roche

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Economic globalisation has facilitated a glut of ‘spectacle’ works of architecture worldwide that often fail to celebrate the genius loci of places or the divergence of human culture. With the current crisis in world capitalism causing a meltdown in the mad rush to overbuild our physical environment it is pertinent to consider once again that architecture can actually contribute to a broader existential understanding.

A recent one-day conference at the Victoria and Albert Museum in London posited such a proposition. Curated by the Finnish writer and theorist, Juhani Pallasmaa and moderated by Jonathan Glancy, the Architecture and Design Editor of …

Low Stakes And Constitutional Interpretation, Adam M. Samaha

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Many of us engage in debates, sometimes intense debates, over the proper method of constitutional interpretation for judges. This Essay offers six reasons to believe that these debates involve low stakes, in the sense that the choice among competing methods will not determine outcomes in a significant number of important cases. These reasons involve mainstream constraints, overlapping results, indeterminate results, intolerable results, interpretation without decision, and inconsequential decisions. After a suitably brief investigation of theoretical and experimental resources on low-stakes decision making, the Essay suggests how debates over constitutional interpretation by judges might proceed if more people become convinced that …

On Law's Tiebreakers, Adam M. Samaha

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Tiebreakers are familiar tools for decisionmaking. Ready examples include penalty shootouts in soccer matches and vice presidents breaking tie votes in the Senate. But we lack a precise understanding of the concept and a normative theory for the use of tiebreakers. This Article strictly defines a tiebreaker as a kind of lexically inferior decision rule and then builds justifications for tiebreaking decision structures. Concentrating on situations in which ties are considered intolerable, the Article suggests methods for either preventing ties or designing sensible tiebreakers. As to the latter, tradeoffs are identified for the use of random variables, morally relevant variables, …

Do Judges Cherry Pick Precedents To Justify Extra-Legal Decisions?: A Statistical Examination, Anthony Niblett

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Justiciability And The Role Of Courts In Adequacy Litigation: Preserving The Constitutional Right To Education, Julia Simon-Kerr, Robynn K. Sturm

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In the first study of opinions handed down in education adequacy litigation between January 2005 and January 2008, this Article shows a marked shift away from outcomes favorable to adequacy plaintiffs. Following two decades in which courts spurred significant reforms in our nation's neediest schools by interpreting the education clauses of their state constitutions to guarantee an "adequate" education for all students, the years 2005 to 2008 have seen a dramatic change in the judicial response to adequacy litigation. Through an analysis of the latest body of cases, we show that separation of powers concerns have begun to drive state …

Private Regulation And Foreign Conduct, Adam I. Muchmore

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The Cost Of Time: Haphazard Discounting And The Undervaluation Of Regulatory Benefits, Arden Rowell

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When performing cost-benefit analyses, regulators typically use willingness- to-pay studies to determine how much to spend to avert risks. Because money has a time-value, when a risk is valued is inextricable from how much it is valued. Unfortunately, the studies on which regulators rely are insensitive to this fact: they elicit people's willingness to pay for risk reductions without identifying the time at which the risk reduction will occur. Relying on these time-indeterminate studies has led to a systematic skew in regulatory cost-benefit analysis, toward the undervaluation of risks to human lives. Insofar as cost-benefit analyses inform regulation, this suggests …

State Action And Corporate Human Rights Liability, Curtis A. Bradley

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This Essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute(ATS). It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. § 1983. It also argues that, even if it were appropriate to borrow in this manner from the § 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds. The Essay assumes for the sake of argument …

The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley

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The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address …

Foreign Sovereign Immunity And Domestic Officer Suit, Curtis A. Bradley, Jack L. Goldsmith

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We recently argued in these pages that international law treats official-capacity suits brought against a foreign state’s officers as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses.¹ This immunity regime under international law differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. While …

Clear Statement Rules And Executive War Powers, Curtis A. Bradley

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No abstract provided.

Customary International Law And Withdrawal Rights In An Age Of Treaties, Curtis A. Bradley, Mitu Gulati

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The conventional wisdom among international law scholars is that, once a rule of customary international law (“CIL”) becomes established, nations never have the unilateral right to withdraw from it. Instead, if they want to act in a way that is contrary to the rule, they must either violate it and hope that other nations acquiesce in the violation, or they must persuade other nations to enter into a treaty that overrides the CIL rule. In Withdrawing from International Custom, we termed this conventional wisdom the “Mandatory View” of CIL.¹

As we explained in Withdrawing, the Mandatory View of CIL …

International Law And The U.S. Common Law Of Foreign Official Immunity, Curtis A. Bradley, Laurence R. Helfer

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In Samantar v Yousuf,¹ the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not apply to lawsuits brought against foreign government officials for alleged human rights abuses.² The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits “may still be barred by foreign sovereign immunity under the common law.”³ At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the immunity of …

Pre-Employment Screening And Investigation: Navigating Between A Rock And A Hard Place, Stephen F. Befort

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Supremely Opaque: Accountability, Transparency, And Presidential Supremacy, Heidi Kitrosser

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The Right To Counsel In Juvenile Court: Law Reform To Deliver Legal Services And Reduce Justice By Geography, Barry Feld, Shelly Schaefer

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The Role Of The Human Rights Committee In Interpreting And Developing Humanitarian Law, David Weissbrodt

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What Cognitive Psychologists Should Find Interesting About Tax, Claire Hill

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The Social, Psychological, And Political Causes Of Racial Disparities In The American Criminal Justice System, Michael Tonry

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Graham's Good News--And Not, Richard Frase

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Book Review, David Weissbrodt

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No abstract provided.