Law Commons^™

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Ryan B. Stoa

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating …

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa has been painfully slow, …

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

Local Home Rule In The Time Of Globalization, Kenneth Stahl

Kenneth Stahl

Cities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature, and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised …

Disparaging The Supreme Court: Is Scotus In Serious Trouble?, Brian Christopher Jones

Brian Christopher Jones

The piece argues that the Court is now subject to the widest and most sophisticated disparagement it has ever experienced, and that the tumultuous terms over the past two years have especially shown its vulnerability. Journalists and the general public are now thinking and speaking about the institution in a much different light than previously, and a deeper conversation about the proper role of the Court, especially in regard to constitutional review, has only just begun. Also, the piece argues that the justices’ disparagement of each other has contributed to this wider criticism, and that the recent health care and …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

Troubled Waters: Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram

Hadar Aviram

On September 3, 2013, Diana Nyad reported having completed a 110-mile swim from Cuba to Florida. The general enthusiasm about her swim was not echoed in the marathon swimming community, whose members expressed doubts about the integrity and honesty of the swim. The community debate that followed gave rise to the creation of the Global Rules of Marathon Swimming, the first effort to regulate the sport. This Article uses the community’s reaction to Nyad’s deviance to examine the role that crime and deviance plays in the creation and modification of legal structures. Relying on Durkheim’s functionalism theory, the Article argues …

Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin

Bailey H. Kuklin

No abstract provided.

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Julia Lynch

Michael L Perlin

Abstract: Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those …

Vulnerability And Power In The Age Of The Anthropocene, Angela Harris

Angela P Harris

No abstract provided.

On The Conceptual Confusions Of Jurisprudence, Aaron Rappaport

Aaron Rappaport

For more than half a century, legal theorists have tried to identify and describe the concept of law, employing a method called “conceptual analysis” to pursue this goal. Yet the details of that methodology remain obscure, its merits largely accepted without careful analysis. A reassessment is long past due. This paper offers the first comprehensive survey of the way conceptual analysis has been used in legal theory. The paper identifies four different forms of conceptual analysis – the empirical, intuitive, categorical and contingent methods of analysis. After clarifying the core assumptions of each approach, the paper evaluates whether any of …

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall

Entender Los Males Económicos Modernos A La Luz De La Doctrina Social Católica, Brian M. Mccall

Brian M McCall

In a general sense, St. Thomas Aquinas predicted the paralysis and chaos of the financial and economic systems in America and Europe which occurred in 2008, when he predicted that in a society where unjust exchanges dominate, eventually all exchanges will cease. St. Thomas also points out that although human law cannot prohibit all injustice, society cannot escape the consequences of transgressing the divine law which leaves “nothing unpunished.” Thus, at least part of the explanation for that crisis whose effects remain with us today lies in continuous violations of natural justice by our economic system. Neither one product nor …

Entender Los Males Economómicos Modernos A La Luz De La Doctrina Social Cátolica (Understanding Modern Economic Woes In Light Of Catholic Social Doctrine), Brian M. Mccall

Brian M McCall

En sentido general, Santo Tomás Aquino predijo la parálisis y el caos del sistema financiero económico en Estados Unidos y Europa que ocurrió en 2008, cuando predijo que en una sociedad donde los intercambios injustos dominan, eventualmente todos los intercambios podrán cesar. Santo Tomás también señala que aunque la ley humana no pueda prohibir todas las injusticias, la sociedad no puede escapar de las consecuencias de trasgredir la ley divina que no deja nada en la impunidad. Así, al menos una parte de la explicación para esta crisis cuyos efectos permanecen con nosotros en la actualidad se encuentra en las …

Restraining The Hand Of Law: A Conceptual Framework To Shrink The Size Of Law, Bryan H. Druzin

Bryan H. Druzin

There is a fierce ideological struggle between two warring camps: those who rally against expansive government and those who support it. Clearly, the correct balance must be struck between the extremes of legislative over-invasiveness and the frightening total absence of legal structure. This paper articulates a framework that allows for legislative parsimony—a way to scale back state law in a way that avoids lurching to unnecessary extremes. I assume the libertarian premise that law should strive to encroach as minimally as possible upon social order, yet I argue that we must do this in a highly selective fashion, employing a …

The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall

Brian M McCall

This lecture addresses the natural relationship between Church and State and explains Catholic Social Teaching regarding the organization of civil society.

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne R. Barnes

Wayne R. Barnes

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David Gray, Danielle Citron

David C. Gray

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Danielle Keats Citron

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores …

Legal Theory From The Regulative Point Of View, Alani Golanski

Alani Golanski

Can A Pluralistic Commonwealth Endure?, Brian M. Mccall

Brian M McCall

This article considers whether the American pluralist system can satisfy Cicero's definition of a commonwealth as a multitude united in a definition of law and justice. The analysis is based upon a review of Thaddeus Kozinski's book, The Problem or Religious Pluralism and Why Philosophers Can't Solve It. This book critiques the philosophy of John Rawls, Jacques Maritain and Alisdaire MacIntyre. The critique is based upon Cicero's definition of a commonwealth and the article concludes that a society which maintains a deep pluralism over the first principles of law and justice cannot survive as a commonwealth.

What Piece Of Work Is Man: Frans De Waal And Pragmatist Naturalism, Wouter H. De Been, Sanne Taekema

Wouter H. de Been

Frans de Waal has questioned a central premise of liberal theory, i.e. that human beings are primarily defined by selfishness and rationality. This premise does not conform to what we know from research about our primate origins - namely that primates are gregarious and guided by sympathy and empathy. De Waal argues we should return to Adam Smith’s moral theory and his focus on sympathy and empathy. We believe a return to pragmatism would be more appropriate. Pragmatism largely conforms to the view of human nature that De Waal’s research now supports. We argue that pragmatism can provide a more …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …