Law Commons^™

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

Robert Kagan

Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also of …

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 …

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations

David Gamage

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …

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 …

Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless

Rebecca Sharpless

Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

Mobility And Community In Urban Policy, Kenneth Stahl

Kenneth Stahl

Urban policymakers have long debated whether to focus on people or on places. Should the government give poor people the means to leave deteriorated neighborhoods, or attempt to bolster such neighborhoods by reinforcing the social norms of the community? Should cities direct the police to crack down on low-level crime, or foster informal connections between the police and local institutions? Definitive answers to these questions have been elusive, but Robert Sampson’s new book GREAT AMERICAN CITY, perhaps the most ambitious work of urban sociology in a generation, provides some needed insight. Using a massive set of data, Sampson demonstrates that …

Anatomy Of Dissent In Islamic Societies, Ahmed Souaiaia

Ahmed E SOUAIAIA

The 'Arab Spring' that began in 2011 has placed a spotlight on the transfer of political power in Islamic societies, reviving old questions about the place of political dissent and rebellion in Islamic civilization and raising new ones about the place of religion in modern Islamic societies.

In Anatomy of Dissent in Islamic Societies, Ahmed E. Souaiaia examines the complex historical evolution of Islamic civilization in an effort to trace the roots of the paradigms and principles of Islamic political and legal theories. This study is one of the first attempts at providing a fuller picture of the place of …

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron

Charles H. Baron

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the …

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 …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

Keeping It Real: Using Facebook Posts To Teach Professionalism And Professional Responsibility, Anna P. Hemingway

Anna P. Hemingway

Exchange As A Cornerstone Of Families, Martha Ertman

Martha M. Ertman

This essay up-ends critical theorist Ivan Illich’s critique of economic thinking as replacing households defined by vernacular gender with married pairs in “inhumane” sex-neutral economic partnerships. It challenges Illich’s view of exchange as a destroyer that has meddled in families for only a few hundred years, citing sociobiological literature to counter his case against exchange with one valorizing two exchanges that I call “primal deals” that played crucial roles in the evolution of humans, families, and day-to-day life. These primal deals—especially the primal pair-bonding deal between men and women—continue to play a central role in families and family law today. …

Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Lynch, Michele Mathes, Nadia Sawicki

Nadia N. Sawicki

Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility that …

The Public-Private Dichotomy In Morality And Law, Larry D. Barnett

Larry D Barnett

The article advances the thesis that the doctrines and concepts of law are attributable to the properties of society and to the forces molding these properties. The thesis, after being illustrated with the federal Investment Advisers Act, is assessed quantitatively using data from the General Social Survey. The Survey interviews a national sample of adults in U.S. households, and in 1991, it ascertained whether interviewees classified morality as a private matter or as a public issue. The social values of interviewees on the public-private nature of morality were the dependent variable in a study that assumed (i) an activity is …

Chipping: Could A High Tech Dog Tag Find Future American Mias?, Marren Sanders

Marren Sanders

No abstract provided.