Law Commons^™

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Using Social Norms As A Substitute For Law, Bryan H. Druzin

Bryan H. Druzin

The Conservatives’ 2015 Fiscal Charter: A Wanting Desire For Constitutional Change, Brian Christopher Jones, Paolo Sandro

Brian Christopher Jones

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

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 …

The Difficult Problem Of Nonpoint Nutrient Pollution: Could The Endangered Species Act Offer Some Relief?, Zdravka Tzankova

Zdravka Tzankova

Nutrient pollution of rivers, streams, lakes, and estuaries is one of the preeminent water quality issues in the United States today, and poses a significant threat to the health of aquatic ecosystems. Agricultural nonpoint discharges, the runoff of nitrogen and phosphorous from animal manure and chemical fertilizers, are the primary sources of such nutrient pollution.

A pervasive and long-standing problem, nonpoint pollution, nutri- ent and otherwise, has proven to be one of the toughest challenges in contemporary environmental regulation. This situation is significantly attributable to the political and administrative dynamics of fragmented regulatory authority. The power to control such nonpoint …

Book Review: 'Living Legislation' By Jeffery A. Jenkins & Eric M. Patashnik (Eds), Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

In The Jungle Of Cities [Review Of The Book Harold Washington And The Neighborhoods: Progressive City Reform In Chicago, 1983-1987], Nick Salvatore

Nick Salvatore

[Excerpt] At first glance such a spatial transformation of work may seem positive, as indeed it was for the largely white work force that left the city and staffed these new positions. But left behind geographically, economically, and socially were the largely black (and to a lesser extent, Mexican) working-class residents. It was at this juncture, with jobs disappearing and the urban social structure fragmented, that black Chicago, symbolized in the person of Harold Washington, finally assumed political power. In Harold Washington and the Neighborhoods, editors Pierre Clavel and Wim Wiewel have collected a group of essays that examine the …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Can The Esa Address The Threats Of Atmospheric Nitrogen Deposition? Insights From The Case Of The Bay Checkerspot Butterfly, Zdravka Tzankova, Dena Vallano, Erika Zavaleta

Zdravka Tzankova

The Bay Checkerspot Butterfly reached its threatened status largely as a result of habitat loss through development. The species now benefits from the habitat pro- tection powers of the Endangered Species Act, yet the biggest new hazard to the survival of remaining Bay Checkerspot Butterfly populations may come from atmospheric nitrogen deposition. Driven by combustion and agricultural emissions, such deposition is an important cause of change in ecosystem structure and function, including potentially critical changes in the remaining Bay Checkerspot Butterfly habitat. We use the Bay Checkerspot Butterfly case to examine whether the Endan- gered Species Act, as it currently …

Don’T’ Know Much About History: Constitutional Text, Practice, And Presidential Power, David A. Schultz

David A Schultz

Assertions of presidential supremacy and power in affairs often invoke history, including events during the administration of George Washington, to defend their assertions. This article raises some questions regarding what we can learn from history for constitutional argument. It concedes generally that historical facts can support or buttress constitution argument, but more specifically it contends that acts undertaken by George Washington are problematic assertions for presidential power, especially those that assert “supremacist” or broad if not exclusive claims for presidential foreign policy authority. To do that, this article first describes how history is employed as constitutional argument for presidential power. …

The Political Consequences Of Legal Victories: Ballast Regulation And The Clean Water Act, Zdravka Tzankova

Zdravka Tzankova

Federal conservation policy has seen a new development recently: the use of the Clean Water Act (CWA) as a tool for regulating ballast water discharges from ships and, thereby, for preventing biological invasions caused by the discharge of nonindigenous organisms in ballast. Some outcomes of this new method for regulating ballast water discharge are obvious, others are much less so. Superimposing CWA regulatory authority on an already existing system of U.S. ballast law and regulation is likely to change the politics of ballast regulation. What do such changes in regulatory politics spell for the future of regulatory protections against biological …

The Mexican Kidnapping Industry: Does Federalism Hold The Government Hostage In Its Efforts To Combat Such Criminality?, Charles B. Bowers

Charles Bowers

No abstract provided.

The Intersection Of Judicial Attitudes And Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making, Jeff L. Yates, Elizabeth Coggins

Jeff L Yates

Two prominent theories of legal decision making provide seemingly contradictory explanations for judicial outcomes. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences -- judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. In contrast, in the law and economics literature, Priest and Klein's well-known Selection Hypothesis posits that court outcomes are largely driven by the litigants' strategic choices in the selection of cases for formal dispute or adjudication -- forward thinking litigants settle cases where potential judicial outcomes are readily …

Less Than Fundamental: The Myth Of Voter Fraudand The Coming Of The Second Great Disenfranchisement, David A. Schultz

David A Schultz

This article examines the issue of voter fraud and efforts to regulate it through new photo identification requirements. The overall thesis is that voting fraud is a pretext for a broader agenda to disenfranchise Americans and rig elections. However, the more specific focus of this article is both to examine the evidence of fraud and the litigation around voter IDs thus far, and what supporters of voting rights can learn from both as they move forward and challenge these laws in the future. The Article will argue that the evidence being offered for the photo IDs does not justify the …

Bargaining In The Shadow Of Violence: The Npt, Iaea, And Nuclear Non-Proliferation Negotiations, Arsalan M. Suleman

Arsalan Suleman

The NPT non-proliferation regime is both a multilateral treaty of international law and a dispute system designed to manage conflict over the use of nuclear technology. The system seeks to balance the competing desires of member-states to have access to peaceful nuclear technology and to provide national security. In the course of implementation, the system must handle disputes over alleged violations of the NPT and IAEA safeguards agreements. Negotiations, crucial to the functioning of the NPT dispute system, are undertaken in the shadow of the law and the shadow of violence. The NPT and any relevant agreement signed with the …

Strategic Planning For Combating Terrorism: A Critical Examination, Arsalan Suleman

Arsalan Suleman

This article engages in a thorough assessment of the Bush Administration's main security strategy documents related to combating terrorism, namely the 2002 and 2006 National Security Strategy documents, the 2003 National Strategy for Combating Terrorism, and the 2006 National Military Strategic Plan for the War on Terrorism. First, the article assesses the value and importance of strategy documents and the utility in analyzing them. Second, the strategies are analyzed based on the process by which they were authored, the structural elements of the strategy, and the strategy's content. Third, the article discusses the overall content of counter-terrorism strategy and makes …

Military Commissions Act Of 2006, Arsalan M. Suleman

Arsalan Suleman

On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA). Congress passed the MCA to authorize the trial by military commissions of detained terrorism suspects after the Supreme Court's decision in Hamdan v. Rumsfeld invalidated the military commissions previously established pursuant to a 2001 military order from President Bush. The MCA adds chapter 47A to title 10 of the U.S. Code to give statutory authorization for the military commissions. This Recent Development explores some of the more controversial aspects of the MCA, especially those sections that respond to the Court's Hamdan decision. The note …

"One Person, One Vote, And The Constitutionality Of The Winner-Take-All Allocation Of Electoral Votes", David A. Schultz

David A Schultz

The winner-take-all method of allocating electoral votes in presidential races is the norm among states, yet nowhere in the Constitution is this practice mandated. This article contends that the winner-take-all allocation of electors unconstitutionally magnifies the battleground states' influence on the final Electoral College tally and that these inequities cannot be reconciled with the principle of one-person, one-vote that the US Supreme Court articulated in the landmark Reynolds v. Sims. In 1966 the Supreme Court declined to hear a case contesting the constitutionality of the winner-take-all system based on the one person, one vote, principle. It is time for the …

Detainee Treatment Act Of 2005, Arsalan M. Suleman

Arsalan Suleman

This Recent Development focuses on the legal standards that would govern the treatment and interrogation tactics applicable to detainees held by the United States abroad after the passage of the Detainee Treatment Act (DTA). The article first discusses the legal implications of the DTA as to U.S. law on the use of torture or CID treatment, which primarily concerns Sections 1002 and 1003 of the DTA. Then, it explores certain shortfalls in the scope of these sections on this issue, as the sections do not fully address all of the potential ways in which detainee abuse and torture might continue. …

The Opacity Of Transparency, Mark Fenster

Mark Fenster

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

Functional Explanation And Metaphysical Individualism, Justin Schwartz

Justin Schwartz

A number of (present or former) analytical Marxists, such as Jon Elster, have argued that functional explanation has almost no place in the social sciences. (Although the discussion is framed in terms of a debate among analytical Marxists, the point is quite general, and Marxism is used for illustrative purposes.) Functional explanation accounts for what is to be explained by reference to its function; thus, sighted organism have eyes because eyes enable them to see. Elster and other critics of functional explanation argue that this pattern of explanation is inconsistent with "methodological individualism," the idea, as they understand it, that …