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2005

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The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale Jan 2005

The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale

Faculty Scholarship

No abstract provided.

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Europe, America And The “Unity” Of International Law, Joost H. B. Pauwelyn Jan 2005

Europe, America And The “Unity” Of International Law, Joost H. B. Pauwelyn

Faculty Scholarship

Is international law "Europeanized"? If so, what are the implications of such "Europeanization" for the unity and coherence of international law? This paper claims, first, that the application of international law by domestic courts in Europe does not threaten the unity of international law. There may be good reasons for domestic courts not to give effect to international law, based on democratic legitimacy, internal balance of powers or reciprocity with other nations. Yet, the risk of fragmentation or inconsistent interpretations is not one of them. Second, the definition and pursuit of a European agenda or European approach to international law …

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Introductory Report On The World Trade Organization, Joost H. B. Pauwelyn Jan 2005

Introductory Report On The World Trade Organization, Joost H. B. Pauwelyn

Faculty Scholarship

Presented at Palma Workshop, 20-21 May 2005, on Unity and Fragmentation in International Law.

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The Framework Of Full Faith And Credit And Interstate Recognition Of Same-Sex Marriages, William A. Reppy Jr. Jan 2005

The Framework Of Full Faith And Credit And Interstate Recognition Of Same-Sex Marriages, William A. Reppy Jr.

Faculty Scholarship

This article considers whether a Massachusetts same-sex marriage or a Vermont same-sex civil union is entitled to full faith and credit in other states by virtue of the Full Faith and Credit Clause of Article IV of the United States Constitution ("the Clause") and, under a statute enacted by Congress to implement that clause, Section 1739 of the Federal Judicial Code.

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Wartime Security And Constitutional Liberty: Detainees, Erwin Chemerinsky Jan 2005

Wartime Security And Constitutional Liberty: Detainees, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witnesses, Robert P. Mosteller Jan 2005

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witnesses, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court radically altered Confrontation Clause analysis for the admission of hearsay statements. It created a very firm rule of actual confrontation for a narrowed class of covered hearsay, termed “testimonial statements,” and created only a limited number of exceptions. This new regime differed dramatically from the trustworthiness/reliability mode of analysis of Ohio v. Roberts (1980), which provided very wide but incredibly shallow protection against the admission of hearsay offered by the prosecution against the defendant. This article analyzes the basic teachings and uncertainties left in the wake of Crawford, sifting through …

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Looking Forward: 2005-2010 - A Sovereign Debt Restructuring Reverie, Steven L. Schwarcz Jan 2005

Looking Forward: 2005-2010 - A Sovereign Debt Restructuring Reverie, Steven L. Schwarcz

Faculty Scholarship

In a prior article, the author asked why, if a sovereign debt restructuring treat would be effective and easy to implement, one does not yet exist. There appeared to be at least three reasons: the very novelty of the approach; the opposition of interest groups who believe that a treaty approach would make it too easy for sovereign debtors to default; and the failure of parties to appreciate the importance of a treaty approach, coupled with concern over ceding sovereignty. In this short reverie, the author hopes to show that these reasons are flawed and that, even where bond issues …

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Mutual Fund Expense Disclosures: A Behavioral Perspective, James D. Cox, John W. Payne Jan 2005

Mutual Fund Expense Disclosures: A Behavioral Perspective, James D. Cox, John W. Payne

Faculty Scholarship

Mutual funds have enjoyed phenomenal growth with their numbers exceeding the number of public companies and their assets aggregating in excess of $9 trillion. Increasingly they are the investment instrument of choice by the proverbial widows, widowers and orphans, and a few school teachers are included as well. But how are best can that choice be one that is not only informed but informed in a way more likely to elicit a wise decision? This paper examines from a behavioral perspective how regulation can best disclose information related to two key factors for investors to compare competing mutual funds: fund …

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We Are All Saying Much The Same Thing: A Rejoinder To The Comments Of Professors Coffee, Macy And Simon, Steven L. Schwarcz Jan 2005

We Are All Saying Much The Same Thing: A Rejoinder To The Comments Of Professors Coffee, Macy And Simon, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

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Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller Jan 2005

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …

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Foreign Law And The Denominator Problem, Ernest A. Young Jan 2005

Foreign Law And The Denominator Problem, Ernest A. Young

Faculty Scholarship

No abstract provided.

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Exiting Treaties, Laurence R. Helfer Jan 2005

Exiting Treaties, Laurence R. Helfer

Faculty Scholarship

This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.

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Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter Jan 2005

Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter

Faculty Scholarship

A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the …

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Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly D. Krawiec, Kathryn Zeiler Jan 2005

Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly D. Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

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Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles Jan 2005

Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles

Faculty Scholarship

This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.

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Judging The Law Of Politics, Guy-Uriel Charles Jan 2005

Judging The Law Of Politics, Guy-Uriel Charles

Faculty Scholarship

In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, "The Supreme Court and Election Law," against the recent work of a leading structuralist, Professor Richard Pildes' recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship …

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The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, Jerome H. Reichman, Keith H. Maskus Jan 2005

The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, Jerome H. Reichman, Keith H. Maskus

Faculty Scholarship

Global trade and investment have become increasingly liberalized in recent decades. This liberalization has lately been accompanied by substantive new requirements for strong minimum standards of intellectual property (IP) protection, which moves the world economy toward harmonized private rights in knowledge goods. While this trend may have beneficial impacts in terms of innovation and technology diffusion, such impacts would not be evenly distributed across countries. Deep questions also arise about whether such globalization of rights to information will raise roadblocks to the national and international provision of such public goods as environmental protection, public health, education, and scientific advance. This …

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Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young Jan 2005

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

Faculty Scholarship

No abstract provided.

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Polygamy, Prostitution, And The Federalization Of Immigration Law, Kerry Abrams Jan 2005

Polygamy, Prostitution, And The Federalization Of Immigration Law, Kerry Abrams

Faculty Scholarship

When Congress banned the immigration of Chinese prostitutes with the Page Law of 1875, it was the first restrictive federal immigration statute. Yet most scholarship treats the passage of the Page Law as a relatively unimportant event, viewing the later Chinese Exclusion Act as the crucial landmark in the federalization of immigration law. This Article argues that the Page Law was not a minor statute targeting a narrow class of criminals, but rather an attempt to prevent Chinese women in general from immigrating to the United States. Most Chinese women migrating to the United States in the early 1870s were …

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Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith Jan 2005

Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the …

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Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne Jan 2005

Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne

Faculty Scholarship

This article explores the variety of opinions expressed by the Justices in the two “Ten Commandments” cases, specifically Justice O’Connor’s dissent and Justice Breyer’s concurrence in Van Orden v. Perry.

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Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2005

Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

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Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2005

Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

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Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins Jan 2005

Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins

Faculty Scholarship

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …

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What Is New In The New Statutory Interpretation? Introduction To The Journal Of Contemporary Legal Issues Symposium, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2005

What Is New In The New Statutory Interpretation? Introduction To The Journal Of Contemporary Legal Issues Symposium, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

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Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati Jan 2005

Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

No abstract provided.

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Terrorism: The Politics Of Prosecution, Madeline Morris Jan 2005

Terrorism: The Politics Of Prosecution, Madeline Morris

Faculty Scholarship

No abstract provided.

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Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck Jan 2005

Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck

Faculty Scholarship

No abstract provided.

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Paying For Politics, John M. De Figueiredo, Elizabeth Garrett Jan 2005

Paying For Politics, John M. De Figueiredo, Elizabeth Garrett

Faculty Scholarship

No abstract provided.

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Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty Jan 2005

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

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