Law Commons^™

Mindful Justice: The Search For Gandhi’S Sympathetic State After Bhopal, Nehal A. Patel

Nehal A. Patel

One of the most startling examples of unmitigated disaster occurred in Bhopal, India, in 1984, when a Union Carbide pesticide plant exploded tons of methyl isocyanate into the air, killing 3800 people overnight. 30 years later, the plant site has not been remediated, and the estimated death toll from the explosion now has reached over 20,000. Disaster victims repeatedly have sought relief directly from the government. Yet, the Indian and US governments and Union Carbide have refused to provide the necessary resources for proper remediation. In this Article, I examine the state’s response to the Bhopal disaster using the thought …

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the Supreme Court's …

The Death Penalty’S “Finely Tuned Depravity Calibrators” Fairness Follies Of Fairness Phonies Fixated On Criminals Instead Of Crimes, Lester Jackson

LESTER JACKSON

It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.” In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving. Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.” It is argued here that this assumption is indefensible both in theory and in practice. As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.” Right and wrong are not determined in the same …

U.S. Supreme Court Justices And Public Mood, Isaac Unah

Isaac Unah

Does public mood influence the decisions of U.S. Supreme Court Justices? Under what conditions might Justices vote against their typical ideological leanings and in favor of public opinion? We employ both quantitative and qualitative methods to address these questions. For the quantitative portion, logistic regression analysis indicates a strong relationship between public mood and Supreme Court Justices’ votes both in the aggregate and for a number of liberal and conservative Justices individually during the 1946 to 2011 Court terms. Justices respond less strongly to public opinion when the Court is highly polarized and when legal issues to be decided are …

Justice Stewart Meets The Press, Keith Bybee

Keith J. Bybee

Among the Supreme Court Justices who have articulated distinctive views of free expression, Justice Potter Stewart alone placed particular emphasis on the First Amendment's protection of a free press. Drawing upon the lessons of history, the plain language of the Constitution, the political events of his day, and his own personal experience, Stewart argued that the organized news media should be considered an essential part of the checks-and-balances competition between the legislative, executive, and judicial branches of the federal government. Stewart’s emphasis on the special structural function of the established press placed him at odds with most of his colleagues …

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …

Escaping Earth’S Orbit But Not Earthly Regulations: A Discussion Of The Implications Of Itar, Ear, Fcc Regulations And Title Vii On Interplanetary Cubesats And Cubesat Programs, Jeremy Straub, Joe Vacekescaping Earth’S Orbit But Not Earthly Regulations: A Discussion Of The Implications Of Itar, Ear, Fcc Regulations And Title Vii On Interplanetary Cubesats And Cubesat Programs

Jeremy Straub

As a small satellite moves further from Earth a lot of mission elements change. More power and/or a larger antenna is needed for communications, fuel requirements increase and mission operations become more complex. What doesn’t change significantly is the set of laws and regulations that the program and spacecraft must operate under. This paper reviews, principally, the impact of the International Trafficking in Arms Regulations (ITAR) and Title VII of the Civil Rights Act of 1964 on the development, discrimination of information about and operations of small satellite programs. It reviews the duties imposed by ITAR, the exemptions enjoyed, particularly, …

The Hit: Why The Nfl's Age Requirement Is Anticompetitive, Chris Green

Chris Green

To be eligible for the NFL Draft, a player is required to be three full seasons removed from his high school graduation. This age requirement has been challenged before, most notably in 2004 Clarett v. National Football League but was struck down due to the non-statutory labor exemption which frees the age requirement from antitrust law and scrutiny. This rule has been put in place because the NFL is considered one of the most violent sporting leagues in the world and only the most physically and mentally mature players should be allowed to compete. The rule was collectively bargained for …

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Aaron J Shuler

Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …

Wrongs Against Immigrants' Rights: Why Terminating The Parental Rights Of Deported Immigrants Raises Constitutional And Human Rights Concerns, Rachel C. Zoghlin

Rachel Claire Zoghlin

Since President Barack Obama first took office in January 2009, his administration has made immigration enforcement a top priority. In 2012, the U.S. government spent more money to deport immigrants – $18 billion – than on the FBI, Secret Service, DEA, U.S. Marshal Service and the Bureau of Alcohol, Tobacco, and Firearms combined. Since January 2009, the Obama administration has removed over 2.2 million immigrants. Of the over 211,000 individuals deported between January and June of 2011, nearly 22% (over 46,000) are parents of U.S.-citizen children. One collateral consequence of these deportations is that over 5,100 children have been placed …

Neoliberalism And The Law Reassessing Historical Materialist Analysis Of The Law For The 21st Century, Justin Schwartz

Justin Schwartz

Historical materialism has been called in question by the triumph of neoliberalism and the fall of Communism. I show, by consideration of two examples, the 2008 crisis and recent Supreme Court campaign spending First Amendment jurisprudence, that neoliberalism instead vindicates the explanatory power of (non-mechanical and non-deterministic) historical materialism in accounting for a wide range of recent legal developments in legislation, executive (in)action, and judicial decision-making.

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Getting Your Bell Rung: Analyzing The Concussion Lawsuits Against The National Football League From Former Players, Joshua P. Monroe

Joshua P Monroe

There has been a great and divisive conflict between the National Football League and its former players about head injuries. Former players are claiming negligence by the league in the addressing the issues of head injuries. This paper investigates the argument by both sides in past, present, and possible future litigation, and further explores head injuries. This article explains that the current litigation, while useful, will not succeed because of its obscurity and the presumptions that it makes regarding concussions. This article proposes a new lawsuit that would combine aspects of the Major Tobacco Settlement Agreement of 1998 and the …

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

The Hit: Why The Nfl's Age Requirement Is Anticompetitive, Chris Green

Chris Green

To be eligible for the NFL Draft, a player is required to be three full seasons removed from his high school graduation. This age requirement has been challenged before, most notably in 2004 Clarett v. National Football League but was struck down due to the non-statutory labor exemption which frees the age requirement from antitrust law and scrutiny. This rule has been put in place because the NFL is considered one of the most violent sporting leagues in the world and only the most physically and mentally mature players should be allowed to compete. The rule was collectively bargained for …

The Limits Of Debate Or What We Talk About When We Talk About Gender Imbalance On The Bench, Keith Bybee

Keith J. Bybee

What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically …

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Freedom To Achieve: The Future Of Student-Led Organizations Within The Public School System, Braden W. Johnson

Braden W Johnson

On-campus religious organizations have received special protections according to their First Amendment rights and the Equal Access Act of 1984. As more controversial organizations have been incorporated within the public school system, school administrators have found it increasingly hard to control the effects of these groups. This article argues for a revision to the Equal Access Act which strengthen's a school's ability to place restrictions on the formation of controversial clubs.

The Gentleman From New York: Congressional Discipline In The Light Of Powell V Mccormack, Braden W. Johnson

Braden W Johnson

In this article, I examines the seating controversy between Rep. Adam Clayton Powell, Jr. and the House of Representatives, and describe the Supreme Court's protection of Powell's right to be seated. Furthermore, I argue that this precedent influenced the Senate to seat Roland Burris, the embattled Illinois Senator appointed by Gov. Rod Blagojevich, without delay.

Webs Of Faith As A Source Of Reasonable Disagreement, Gregory Brazeal

Gregory Brazeal

Contemporary political theorists and philosophers of epistemology and religion have often drawn attention to the problem of reasonable disagreement. The idea that deliberators may reasonably persist in a disagreement even under ideal deliberative conditions and even over the long term poses a challenge to the common assumption that rationality should lead to consensus. This essay proposes a previously unrecognized source of reasonable disagreement, based on the notion that an individual's beliefs are rationally related to one another in a fabric of sentences or web of beliefs. The essay argues that an individual's beliefs may not form a single, seamless web, …

Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler

Aaron J Shuler

Rogers Smith in his "Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America," warns of novel legal systems reconstituting ascriptive American inequality. The post-Warren Courts' approach to Equal Protection, specifically their unwillingness to consider disparate impact and the difference between invidious and benign practices, betrays an "ironic innocence" as described by James Baldwin to a history of racial discrimination and domination, and a disavowal of a hiearchy that the Court perpetuates.

Grumpy Old Men: A Correlation Between Irritation And Intolerance For Marriage Equality, Aaron J. Shuler

Aaron J Shuler

The Gay Equality Movement has made expeditious strides in the last few decades. Most progress in accepting attitudes toward homosexuals has been made in groups that are traditionally associated with liberal views toward minority groups: the young, the educated, and, to a lesser extent, women. This paper seeks to use membership in those groups as control variables to determine whether another less understood independent variable bears on tolerance. Specifically, this paper uses data from the American National Election Survey from 2008-09 and Alan Gerber’s work on the “Big Five” personality traits to determine whether irritated or less agreeable citizens are …

Post-Citizens United: Using Shareholder Derivative Claims Of Corporate Waste To Challenge Corporate Independent Political Expenditures, William Alan Nelson Ii

William Alan Nelson II

The Supreme Court’s recent decision in Citizens United v. FEC allows companies to spend unlimited sums from their treasuries on advertisements that promote or oppose political candidates. This issue has taken the main stage in American politics, especially with the current Republican primary race and the Presidential election in November. This article discusses how shareholders may use derivative claims of corporate waste to challenge independent political expenditures that they believe are detrimental to the corporation. The article begins by discussing the history of the corporate waste doctrine and looks at the standard for pleading a claim of corporate waste. The …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

The Federal Transit Administration (FTA) is a branch of the U.S. Department of Transportation that administers federal funds and provides technical assistance for the support of locally operated public transit systems. MARTA / Atlanta metro area are part of FTA Region IV (the Southeast). FTA would be involved, for instance, in financing the federal grant monies discussed above. But actual regulation of operations (i.e., what MARTA does each day, or what MARTA will plan to do regionally) is more closely regulated by Georgia agencies.

Until recently, the Atlanta metropolitan area had no powerful central agency to coordinate regional transit. The …

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

The Great Gun Control War Of The Twentieth Century--And Its Lessons For Gun Laws Today, David B. Kopel

David B Kopel

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, …

Judicial Behavior And Religious Language, Braden W. Johnson

Braden W Johnson

This study provides qualitative and quantitative evidence supporting the premise that the court of venue where a case is tried (Dependent Variable) strongly affects the number of religious references used by the judges in their published opinion (Independent Variable). The data set is from a content analysis of 15 lower court cases and their 15 corresponding Supreme Cases. I find that the US Supreme Court is far more likely to use religious and moralistic references than any lower court. This evidence is used to support the idea that a significant quantity of lower court judges do not vote solely on …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

Is Minnesota Gop Voter I.D. Proposal Sabotage Dressed As Integrity?, Aaron J. Shuler

Aaron J Shuler

No abstract provided.

A Palin Entry Could Upend Bachmann And Benefit Pawlenty In Iowa, Aaron J. Shuler

Aaron J Shuler

No abstract provided.