Law Commons^™

Don’T Be Silly: Lawmakers “Rarely” Read Legislation And Oftentimes Don’T Understand It . . . But That’S Okay, Brian Christopher Jones

Brian Christopher Jones

During the debate over the Patient Protection and Affordable Care Act ("Obamacare"), the reading and understanding of legislation became one of the most controversial issues mentioned in Congress and throughout the media. This led many to state that lawmakers should “read the bill,” and led one academic to propose a read-the-bill rule for Congress, where legislators would not vote or vote “no” if they had not read the full text of the legislation. My essay argues that in contemporary legislatures such proposals are unfeasible, and would ultimately produce lower quality legislation. In doing so, the piece uses interviews with legislative …

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda

Vito Breda

This essay reports on the result of hermeneutical research entitled Objectivity in the UK Judicial Discourse. The concept of objectivity generates a plurality of analysis. For instance, in legal theory, MacCormick suggests the possibility of an objective interpretation of cases. Objectivity in the UK Judicial Discourse focuses on the interpretation of the concept by common law judges. In particular, the project sought to map out the cluster of interpretations (and arguments derived therefrom) on the concept of objectivity by the House of Lords and the UK Supreme Court. The result of the study shows that within UK law there …

Constitutional Patriotism: A Reasonable Theory Of Radical Democracy?, Vito Breda

Vito Breda

Since its first appearance just over a decade ago, Habermas's constitutional patriotism has inspired a rich and articulate series of theoretical analyses and has indirectly encouraged constitutional projects such as the Constitution for Europe. The popularity of constitutional patriotism among political and constitutional theorists has, however, also generated some confusion over the aims and basic structure of Habermas's endeavour. For instance, it is unclear whether constitutional patriotism ought to be considered a constitutional or political theory. This paper seeks to clarify some of the misunderstandings surrounding constitutional patriotism. It will contend that the theory is, at its core, a political …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

Enforcing International Law: States, Ios, And Courts As Shaming Reference Groups, Roslyn Fuller, Sandeep Gopalan

Roslyn Fuller

We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

Possession is nine-tenths of ownership. And yet, the concept of possession remains woefully unclear in the law, thereby rendering the very idea of ownership too somewhat murky. This Article argues that there exists a reflexive relationship between possession and ownership, and that one’s understanding of ownership and its incidents influence the very concept of possession, rather than vice-versa. The Article further argues that given this reality, the application of the concept of stewardship to question of possession can aid significantly in resolving some of the most important contemporary disputes regarding possession and ownership in society, such as disputes between museums …

Euthanasia And Physician-Assisted Suicide: A Comparison Of Eu And U.S. Law, Stephen Hoffman

Stephen P. Hoffman

This paper examines the controversial and complex issues of euthanasia and physician-assisted suicide (PAS). I begin by defining and distinguishing these two terms and explain how they relate to each other. I also describe the medical doctrine of double effect, in which relieving pain comes at the expense of hastening death. Then, I give a brief overview of the common law defense of necessity, which is practically the sole defense available to or used by physicians accused of committing euthanasia or PAS. Finally, I analyze the legal doctrines of euthanasia and PAS, focusing on legislation and cases in the European …

When Socrates Meets Confucius: Teaching Creative And Critical Thinking Across Cultures Through Multilevel Socratic Method, Erin Ryan

Erin Ryan