Digital Commons Network^™

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 …

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 …

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.

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 …

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 …

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

Faculty Scholarship

No abstract provided.

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 …

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 …

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.

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

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

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 …

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.

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

Faculty Scholarship

No abstract provided.

Terrorism: The Politics Of Prosecution, Madeline Morris

Faculty Scholarship

No abstract provided.

Judicial Triage: Reflections On The Debate Over Unpublished Opinions, Mitu Gulati, David C. Vladeck

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

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.

Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper

Faculty Scholarship

No abstract provided.

Towards A Continuum Of Scholarship: The Eventual Collapse Of The Distinction Between Grey And Non-Grey Literature, Marcus A. Banks

Copyright, Fair Use, Scholarly Communication, etc.

Abstract (from University of Arizona Campus Repository)

This paper argues that the distinction between grey and non-grey (or white) literature will become less relevant over time, as online discovery options proliferate. In the meantime, the political success of the open access publishing movement has valuable lessons for proponents of increasing access to grey literature.

Partisan Gerrymandering And Disaggregated Redistricitng, Adam B. Cox

Public Law and Legal Theory Working Papers

No abstract provided.

From Mobile Ontologies To Mobile Aesthetics, Jos De Mul

Contemporary Aesthetics (Journal Archive)

We are living in a globalizing world, characterized by constant and rapid innovation. As we are inclined to go with this flow and its accompanying discourse of mobility, there is a danger that we overlook the persistence of cultural traditions. However, this paper argues that important differences exist between pre-modern, modern and post-modern traditions with regard to the form mobility takes. After a short discussion of the role information and communication technologies play in post-modern traditions, it is argued that these technologies transform our world, and not only our electronic files, into a global database and, as a consequence, generate …

Movement And Participation: Journeys Within Everyday Environments, Johanna Hällsten

Contemporary Aesthetics (Journal Archive)

Motion is an elementary part of our everyday life; it determines our perception and appropriation of environmental features. We are immersed in the world while on foot, grounding awareness of the three-dimensionality of the world and ourselves through movement. As a site-specific installation artist, movement is a crucial aspect of my practice in the sense that it makes the work occur. I argue that the installation comprises the experience of the participant through his or her interaction with the space and the intervention that has occurred through movement. The experience is one which unfolds and changes as the participant walks …

Are Supertasters Good Candidates For Being Human Ideal Critics?, Francis Raven

Contemporary Aesthetics (Journal Archive)

This paper asks whether supertasters possess the criteria for ideal critics that David Hume outlines in his essay "Of the Standard of Taste." This might seem like a straightforward question, but there is a paradox involving supertasters: They possess more tastebuds than normal tasters, making it reasonable to assume they fulfill the requirements for Humean ideal critics with respect to taste. However, because they have more tastebuds, supertasters find certain foods bitter that normal tasters do not and thus negatively evaluate them. This might indicate that supertasters actually make poor candidates for being Humean ideal critics with respect to taste. …

Avant-Garde Or Pré-Jugé?, Sinead Murphy

Contemporary Aesthetics (Journal Archive)

This paper receives its impetus from Gadamer's account of effective history (Wirkungsgeschichte) and his corresponding challenge to the 'problem of purity' that he locates in Kant's critique of aesthetic judgment and that derives from the attempt to establish universal founding principles for thought and action. This is a deep and wide-ranging issue, and so I focus on a very specific aspect of it: the division between intuition and understanding, between history as a given flux and enlightenment as a unifying synthesis, that motivates Kant's search for pure reflective grounds to reconcile them, and on the challenge posed to this division …

Immersive Contemplation In Video Art Environments, Tiffany Sutton

Contemporary Aesthetics (Journal Archive)

This essay examines a form of video art -- what is called a "video environment" -- that calls upon as much as it departs from familiar conventions that are bound up in museum display. I argue that the way that works in this genre are housed in museums enables them to give rise to a form of contemplation, one involving immersion, that is, if not unique to this genre, then certainly demonstrated by it. My examples of video environments make a case for the coherence of this rarely experienced immersive form of contemplation, the value of which, in turn, makes …

Carrying The Jade Tablet: A Consideration Of Confucian Artistry, Eric C. Mullis

Contemporary Aesthetics (Journal Archive)

In this paper I discuss the aesthetic dimension of ritual action. In order to demonstrate how the rites render action aesthetically expressive, I draw on the notion of an "art of context" and further detail the Confucian understanding of artistic practice as an essential component for moral cultivation. In turn, I use John Dewey's account of aesthetic form in order to support and further demonstrate the ability of the rituals and arts to organize action and to thereby render it aesthetically significant. However, Dewey's account entails that we question either conceptual or institutional limitations of aesthetic form as such limitations …

Production Theories And Artistic Value, David E.W. Fenner

Contemporary Aesthetics (Journal Archive)

In this paper, I want to argue that what I call "production theories" - theories that purport to account for the value of a work of art instrumentally and in terms of something experienced by audience members in attending to the work - are insufficient to account for artistic value. The production theories I will discuss include those of Monroe Beardsley, Nelson Goodman, Leo Tolstoy (for lack of a more current pure affective theory), and Alan Goldman (whose account may be seen as an amalgam of the first three). The first three of these theorists represent the most popular and …

'Man Has Always Danced': Forays Into The Origins Of An Art Largely Forgotten By Philosophers, Maxine Sheets-Johnstone

Contemporary Aesthetics (Journal Archive)

Philosophers have had comparatively little to say of the art of dance, a surprising fact given the range of people both inside and outside of dance who have claimed that 'man has always danced.' This essay attempts to substantiate this claim by an inquiry into the origins of dance, its focal attention being on the word always and any linkage to males deriving from that focal point of attention. It begins with evolutionary considerations in the form of courtship displays, behaviors finely and extensively described by Darwin, and goes on to consider displays by chimpanzees in particular. These considerations point …

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …