Digital Commons Network^™

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Review Of "Confucian Constitutional Order: How China’S Ancient Past Can Shape Its Political Future" By Jiang Qing, Carl F. Minzner

Faculty Scholarship

No abstract provided.

Charter Schools, The Establishment Clause, And The Neoliberal Turn In Public Education, Aaron J. Saiger

Faculty Scholarship

Regardless whether the American charter school can improve academic performance and provide effective alternatives to traditional public schools, its steady entrenchment as an institution portends significant, destabilizing changes across education law. In no area will its impact be more profound than the law of religion and schooling. Despite the general view that charter schools are public schools, charters’ neoliberal character — they are privately created and managed, and chosen by consumers in a marketplace — makes them private schools for Establishment Clause purposes, notwithstanding their public subsidy. This conclusion, which rests in substantial part on the Zelman v. Simmons-Harris vouchers …

The Political Morality Of Voting In Direct Democracy, Michael Serota, Ethan J. Leib

Faculty Scholarship

The voting levers in candidate elections and in direct democracy elections are identical. The political obligations that bind the citizens that pull them are not. This Essay argues that voters in direct democracy elections, unlike their counterparts in candidate elections, serve as representatives of the people and are, accordingly, bound by the ethics of political representation. Upending the traditional dichotomy between representative and direct democracy, this Essay explains why citizens voting in direct democracy are representative legislators who must vote in the public interest and must not vote in their private interests.

Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb

Faculty Scholarship

Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …

Federalism And The Eighth Amendment, Youngjae Lee

Faculty Scholarship

How many “cruel and unusual punishments” clauses are there? Michael Mannheimer, in his article, Cruel and Unusual Federal Punishments, argues that there are two—one for the federal government and one for state governments.1 Mannheimer contends that courts have been unduly neglecting the former and mistakenly applying the latter to the federal government without adequate reflection.2 Mannheimer further argues that the Eighth Amendment is primarily a device to promote state sovereignty and that we should accordingly read it as requiring that federal punishments be no more severe than state punishments for equivalent crimes.3 I cannot do justice in this brief Response …

Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth. Review Of Plague Of Prisons: The Epidemiology Of Mass Incarceration In America By Ernest Drucker, John F. Pfaff

Faculty Scholarship

This article reviews Ernest Drucker's recent book, "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," which attempts to explain the causes behind the explosion in prison growth over the past several decades. The account proves to be unsatisfying, and this review highlights four major flaws with Drucker's work. First, Drucker places too much weight on the war on drugs. While he argues it is the primary engine of prison growth, the increase in drug incarcerations explains only about 25% of the total growth since the 1970s. Second, he significantly underplays the importance of soaring crime rates between …

The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Fraud on the market is at the core of contemporary securities law, permitting 10b-5 class actions to proceed without direct proof of investor reliance on a misrepresentation. Yet the ambiguities of this idea have fractured the Supreme Court from its initial recognition of the doctrine in Basic v. Levinson to its recent decision in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds. Amidst divergent views of the coherence and advisability of liability for fraud on the market a fundamental question lurks: is a suit for damages that invokes the fraud-on-the-market theory a claim for common law deceit, such that …

Critical Legal Studies In Intellectual Property And Information Law Scholarship, (Symposium), Sonia K. Katyal, Peter Goodrich, Rebecca L. Tushnet

Faculty Scholarship

No abstract provided.

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Faculty Scholarship

In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply …

Blood And Daring: How Canada Fought The American Civil War And Forged A Nation, Gregory Marquis

Civil War Book Review

Canada's Role and Reaction to the American Civil War

Blood and Daring is a well-organized and well-written account of the complicated relationship between the American Civil War and the creation of the Dominion of Canada in 1867 out of three British North American colonies: the Uni....

Notices

Contemporary Aesthetics (Journal Archive)

No abstract provided.

The World Achieved: Film And The Enacted Mind, John M. Carvalho

Contemporary Aesthetics (Journal Archive)

Stanley Cavell taught us that films give us a view of a world that differs from the world in which we view films only by not being that world. Films, that is, screen a world for us and screen us from a world that is not our own. Cavell’s view is based on a photographic conception of film images. A film is composed of photographic images collected on reels and put in motion at twenty-four frames per second. In “More of the World Viewed,” Cavell dares us to come up with a theory of perception that challenges the assumption that …

The Violence Of Post-Racial Memory And The Political Sense Of Mourning, Alfred Frankowski

Contemporary Aesthetics (Journal Archive)

In this paper I argue that “post-raciality” entails a way of remembering that depoliticizes the social meaning of memory and thus of history. Through aesthetic critique, I attempt to show how the hyper-production of memory obscures the very real forms of violence directed toward non-whites. By developing the aesthetic critiques of W.E.B. Du Bois and Walter Benjamin, I argue that representing former violence as social memory fails to adequately address subtle forms of cultural and residual violence. Furthermore, I argue that post-racial memory produces sites and representations of the past only to enact a type of social forgetting in the …

Experiencing Photographs Qua Photographs: What's So Special About Them?, Jiri Benovsky

Contemporary Aesthetics (Journal Archive)

No abstract provided.

Hegel's Symbolic Stage: An Old Perspective On Contemporary Art, Laura T. Disumma-Koop

Contemporary Aesthetics (Journal Archive)

This paper proposes an evaluation of contemporary art works in light of some of the concepts embedded in Georg Wilhelm Friedrich Hegel’s symbolic stage. My belief is that an analysis of Hegel’s conditions for the affirmation of art opens the door to a discussion of contemporary artistic trends, a discussion that also takes distance from the (perhaps) abused question of what defines art. Art does more than question itself; art questions, and challenges, the nature of our perception.

Annual Reports Of The Town Of Seabrook, New Hampshire For The Year Ending December 31st, 2012, As Compiled By The Town Officers., Seabrook Town Representatives

Seabrook, NH Annual Reports

This is an annual report containing vital statistics for a town/city in the state of New Hampshire.

Elections And Alignment, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

Election law doctrine has long been dominated by rights-and-interests balancing: the weighing of the rights burdens imposed by electoral regulations against the state interests that the regulations serve. For the last generation, the election law literatu

Why Legal Positivism (Again), Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

Bankruptcy Step Zero, Douglas G. Baird, Anthony Casey

Public Law and Legal Theory Working Papers

No abstract provided.

The Consequences Of Consequentialist Criteria, Nicholas Stephanopoulos

Public Law and Legal Theory Working Papers

The two most significant approaches to redistricting to emerge in the last generation are both consequentialist. That is, they both urge authorities to design—and courts to evaluate—district plans on the basis of the plans’ likely electoral consequences. According to the partisan fairness approach, plans should treat the major parties symmetrically in terms of the conversion of votes to seats. According to the competitiveness approach, districts should be as electorally competitive as is feasible. Unnoticed by the literature, a substantial number of jurisdictions, in both America and Australia, have heeded these calls from the academy. In sum, consequentialist criteria have been …

Toward A Positive Theory Of Privacy Law, Lior Strahilevitz

Public Law and Legal Theory Working Papers

No abstract provided.

Federalism, Liberty, And Risk In Nifb V. Sebelius, Aziz Huq

Public Law and Legal Theory Working Papers

This book chapter analyzes the Supreme Court’s decision in National Federation of Independent Business (NFIB) v. Sebelius. Contra conventional wisdom, it argues that the pivotal opinion of Chief Justice Roberts is not well explained in federalism terms. Rather, the decision is best understood in light of entrenched historical understandings of the federal government’s appropriate role in managing diverse species of risk.

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Getting To Rights: Treaty Ratification, Constitutional Convergence, And Human Rights Practice, Tom Ginsburg, Zachary Elkins, Beth Simmons

Public Law and Legal Theory Working Papers

This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not …

Historical Gloss: A Primer, Alison Lacroix

Public Law and Legal Theory Working Papers

No abstract provided.

Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert W. Alschuler

Public Law and Legal Theory Working Papers

No abstract provided.

An Empirical Study Of The Effect Of Shady Grove V. Allstate On Forum Shopping In The New York Courts, William Hubbard

Public Law and Legal Theory Working Papers

Given the considerable prominence of forum-shopping concerns in the jurisprudence and academic literature on the so-called Erie Doctrine, courts and commentators may benefit from data on whether, and to what extent, forum shopping in fact responds to choice-of-law decisions under the Erie Doctrine. Prior to this paper, however, no empirical study quantified the changes in forum shopping behavior caused by a court decision applying the Erie Doctrine. I study changes in filing patterns of cases likely to be affected by the Supreme Court’s recent decision in Shady Grove v. Allstate and find evidence of large shifts in the patterns of …

Beccaria's 'On Crimes And Punishments': A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Public Law and Legal Theory Working Papers

No abstract provided.

Libertarian Paternalism, Path Dependence, And Temporary Law, Tom Ginsburg, Jonathan Masur, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.