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2007

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Articles 1 - 30 of 376

Full-Text Articles in Law

Debate: Collaborative Environmental Law: Pro And Con, Eric W. Orts, Cary Coglianese Dec 2007

Debate: Collaborative Environmental Law: Pro And Con, Eric W. Orts, Cary Coglianese

All Faculty Scholarship

In this thoughtful and intricate cross-disciplinary debate, Professors Eric W. Orts, of Penn’s Wharton School, and Cary Coglianese, of Penn’s Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context. It is no exaggeration to say that each year the world grows ever more aware of the nature of the environmental problems we face, and yet critical policy solutions continue to remain beyond the grasp of even the most interested parties. Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. He argues that "the view …


The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella Dec 2007

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …


Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha Nov 2007

Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Houve tempo em que a Constituição servia para poisar ou charuto ou tirar um argumento político, como ironicamente afirmaria o grande escritor oitocentista Eça de Queiroz. Hoje a Constituição é a norma das normas. Daí há consequências hermenêuticas. Ao contrário das teorias que importam interpretação tradicional e, por vezes, em grande medida ultrapassada, para o Direito Constitucional, a tendência actual é a inversa: dada a supremacia da Constituição, deve ser a metodologia constitucional a exportar hermenêutica para o todo do Direito. Para isso, começamos neste artigo com grandes princípios de hermenêutica intra-constitucional. Depois se passará à exportação.


Lawyers And Great Expectations In Pakistan, Shubhankar Dam Nov 2007

Lawyers And Great Expectations In Pakistan, Shubhankar Dam

Shubhankar Dam

No abstract provided.


The Right To Privacy Unveiled, Samuel C. Rickless Nov 2007

The Right To Privacy Unveiled, Samuel C. Rickless

San Diego Law Review

The purpose of this Article is to bring order to this theoretical chaos. In my view, none of these accounts of the right to privacy is accurate. As I will argue, we are better served by a completely different theoretical description of the relevant right. It is my hope that greater philosophical clarity in this area of ethics will lead to a more careful appreciation of the value of the right to privacy, as well as legislation and judicial reasoning that is more carefully crafted to protect against violations of the right. This Article is organized as follows: In Part …


Privacy Versus Security: Why Privacy Is Not An Absolute Value Or Right, Kenneth Einar Himma Nov 2007

Privacy Versus Security: Why Privacy Is Not An Absolute Value Or Right, Kenneth Einar Himma

San Diego Law Review

In this Article, I consider the scope of this right to informational privacy relative to our interests in security and argue, in particular, that the right to privacy must yield to these interests in the case of a direct conflict. I offer arguments from a number of different perspectives. I will, for example, begin with a case directly rooted in what I take to be ordinary case intuitions and then continue with an argument grounded in the distinction between intrinsic and instrumental value, which is thought to serve as a rough mark between what is important from a moral point …


Claims To Privacy And The Distributed Value View, Alan Rubel Nov 2007

Claims To Privacy And The Distributed Value View, Alan Rubel

San Diego Law Review

This Article is organized as follows. In Part II, I briefly explain my view of what privacy is - the particularized judgment account. I then turn to the question of privacy - value in Part III, where I examine several views prominent in the literature. In Part IV, I outline my view of privacy's value. I argue that, at its strongest, privacy has constitutive value, which is to say that privacy is a constituent part of intrinsically valuable states of affairs. However, in many cases, privacy's value is not morally weighty. Unlike other goods to which privacy is compared, I …


Introduction To The 2007 Editors’ Symposium: Informational Privacy: Philosophical Foundations And Legal Implications, Larry Alexander Nov 2007

Introduction To The 2007 Editors’ Symposium: Informational Privacy: Philosophical Foundations And Legal Implications, Larry Alexander

San Diego Law Review

The outstanding collection of articles and comments thereon that follows this Introduction constitutes the 2007 Editors' Symposium of the San Diego Law Review. This year's theme is: "Informational Privacy: Philosophical Foundations and Legal Implications."


Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee Nov 2007

Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee

San Diego Law Review

The controversy over the Bush Administration's warrantless wiretapping program will not disappear any time soon. Legislators, policymakers, and academics should be thinking about whether and under what circumstances such surveillance should be illegal. A major factor in that decision is the moral status of such wiretapping. This essay, written for a symposium on moral rights to informational privacy, argues that two key determinants in the morality of warrantless wiretapping are (1) whether the subjects of the surveillance are known terrorists; and (2) whether the wiretapping is part of a pre-emptive surveillance program, or instead whether government operatives actually know of …


Has A New Day Dawned For Indigent Defense In Virginia?, Robert E. Shepherd Jr. Nov 2007

Has A New Day Dawned For Indigent Defense In Virginia?, Robert E. Shepherd Jr.

University of Richmond Law Review

No abstract provided.


Family And Juvenile Law, Lynne Marie Kohn Nov 2007

Family And Juvenile Law, Lynne Marie Kohn

University of Richmond Law Review

No abstract provided.


Toward Informational Privacy Rights, Adam D. Moore Nov 2007

Toward Informational Privacy Rights, Adam D. Moore

San Diego Law Review

In this paper I will offer several arguments in support of the view that individuals have moral claims to control personal information. Coupled with rights to control access to one's body, capacities, and powers, or physical privacy rights, we will have taken important steps toward a general right to privacy. In Part I, a definition of privacy is offered along with an account of the value of privacy. Simply put, privacy - defined as control over access to locations and information - is necessary for human well-being. In Part II, an attempt to move beyond claims of value to claims …


Some Questions For The Barrier Theory, Alan Rubel Nov 2007

Some Questions For The Barrier Theory, Alan Rubel

San Diego Law Review

Having set out the basics, Rickless considers several questions one might pose for the Barrier Theory. For example, must the barrier be solid? No. Must the barrier be erected by, rather than merely used by, the rightholder? No. Must the barrier be morally permissible in the first instance? No. While Rickless's answers seem correct, I think that they raise some concerns about the Barrier Theory.


Separation, Risk, And The Necessity Of Privacy To Well-Being: A Comment On Adam Moore's Toward Informational Privacy Rights, Kenneth Einar Himma Nov 2007

Separation, Risk, And The Necessity Of Privacy To Well-Being: A Comment On Adam Moore's Toward Informational Privacy Rights, Kenneth Einar Himma

San Diego Law Review

In this Article, I want to raise doubts about certain of Moore's premises in his argument defending information privacy rights. As always and I say this as a continuing admirer of his skill as a philosopher, information theorist, and legal theorist his argument is well thought out and persuasively written. But, as we will see, there are serious problems with each major plank of his schema for justifying privacy rights.


"I'Ve Got Nothing To Hide" And Other Misunderstandings Of Privacy, Daniel J. Solove Nov 2007

"I'Ve Got Nothing To Hide" And Other Misunderstandings Of Privacy, Daniel J. Solove

San Diego Law Review

In this short Article, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: "I've got nothing to hide." According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide …


The Human Right To Privacy, James Griffin Nov 2007

The Human Right To Privacy, James Griffin

San Diego Law Review

To say much of interest about a particular human right, we have to know its content. So we have to know how to decide its content. That is where I shall start.


The Price Of Misdemeanor Representation, Erica J. Hashimoto Nov 2007

The Price Of Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …


The Origins Of Shared Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban, Owen D. Jones Nov 2007

The Origins Of Shared Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban, Owen D. Jones

All Faculty Scholarship

Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself – physical aggression, takings without consent, and deception in transactions – the shared intuitions are stunningly consistent, across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward …


Giving Voice To The Religious, Seow Hon Tan Oct 2007

Giving Voice To The Religious, Seow Hon Tan

Research Collection Yong Pung How School Of Law

The relevance of moral values endorsed by religious persons in public decision-making has often been debated. The issue comes to the fore again in relation to the debate on Section 377A of the Penal Code dealing with acts of gross indecency between males. With the flourishing of diverse viewpoints that is a natural consequence of a liberal democratic society, and with greater participation by an increasingly sophisticated citizenry online and in the media, particularly in a nation in which those without religious affiliations make up only 15 per cent of the population, the ground rules of public discourse must be …


The Impossibility Of A Prescriptive Paretian, Robert C. Hockett Oct 2007

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Cornell Law Faculty Publications

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.


Face To Face With “It”: And Other Neglected Contexts Of Health Privacy, Anita L. Allen Oct 2007

Face To Face With “It”: And Other Neglected Contexts Of Health Privacy, Anita L. Allen

All Faculty Scholarship

“Illness has recently emerged from the obscurity of medical treatises and private diaries to acquire something like celebrity status,” Professor David Morris astutely observes. Great plagues and epidemics throughout history have won notoriety as collective disasters; and the Western world has made curiosities of an occasional “Elephant Man,” “Wild Boy,” or pair of enterprising “Siamese Twins.” People now reveal their illnesses and medical procedures in conversation, at work and on the internet. This paper explores the reasons why, despite the celebrity of disease and a new openness about health problems, privacy and confidentiality are still values in medicine.


Book Information And Talk At Ritz Theatre And Lavilla Museum Oct 2007

Book Information And Talk At Ritz Theatre And Lavilla Museum

Textual material from the Rodney Lawrence Hurst, Sr. Papers

A talk with Rodney Hurst about his new book "It was Never about a Hot dog and a Coke"


The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield Oct 2007

The Glass Half Full: Envisioning The Future Of Race Preference Policies, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Justice Breyer's concern that the Court's June 2007 ruling in Parents Involved in Community Schools v. Seattle School District. No. 1 "is a decision the Court and nation will come to regret" is not well founded. Far from limiting the constitutionally permissible use of race in education from its present restriction to higher education, the case may allow governmental entities to consider race as a factor to achieve diversity in grades K-12. In Parents Involved, which the Court decided with its companion case, McFarland v. Jefferson County Public Schools four justices concluded that school boards may never consider race when …


Horse-And-Buggy Dockets In The Internet Age, And The Travails Of A Courthouse Reporter, Lyle Denniston Oct 2007

Horse-And-Buggy Dockets In The Internet Age, And The Travails Of A Courthouse Reporter, Lyle Denniston

The Journal of Appellate Practice and Process

No abstract provided.


Some Reflections On Cameras In The Appellate Courtroom, Diarmuid F. O'Scannlain Oct 2007

Some Reflections On Cameras In The Appellate Courtroom, Diarmuid F. O'Scannlain

The Journal of Appellate Practice and Process

No abstract provided.


Technological Transparency: Appellate Court And Media Relations After Bush V. Gore, Robert Craig Waters Oct 2007

Technological Transparency: Appellate Court And Media Relations After Bush V. Gore, Robert Craig Waters

The Journal of Appellate Practice and Process

No abstract provided.


Five Ways Appellate Courts Can Help The News Media, Tony Mauro Oct 2007

Five Ways Appellate Courts Can Help The News Media, Tony Mauro

The Journal of Appellate Practice and Process

No abstract provided.


Eesi Newsletter, No. 3, Oct. 2007, Energy & Environmental Security Initiative (University Of Colorado Boulder) Oct 2007

Eesi Newsletter, No. 3, Oct. 2007, Energy & Environmental Security Initiative (University Of Colorado Boulder)

EESI: The Energy & Environmental Security Initiative [Newsletter] (2007)

No abstract provided.


Vol. 1, No. 2 (Fall 2007) Oct 2007

Vol. 1, No. 2 (Fall 2007)

Indiana Law

No abstract provided.


The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell Oct 2007

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Faculty Works

This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. …