Law Commons^™

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 …

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 …

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 …

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 …

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. …

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 …