Law Commons^™

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

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In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

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This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar

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Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. …

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

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No abstract provided.

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

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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 …

Project Bioshield, More Than Meets The Eye: A Critique Of The U.S.’S Proposed Silver Bullet For Responding To Bio-Terrorism, Jodi A. Phillipo

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No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley

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No abstract provided.

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

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The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

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The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

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Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas

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The political theorist William Galston argues that the liberal political tradition contains two distinct strands of philosophical thought. One emphasizes the principle of autonomy, while the other stresses the principle of diversity. These principles, according to Galston, are in tension with each other and as guiding criterions lead to quite different public policies. Autonomy-centered liberalism seeks to promote autonomy or “individual self-direction”; it reflects a “commitment to sustained rational examination of self, others, and social practices.” As such, autonomy-centered liberals are generally suspicious of religious belief and seek to confine it to the private sphere. Diversity-centered liberalism, on the other …

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

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Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

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This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

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This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the abuse …

From International Law To Law And Globalization, Paul Schiff Berman

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International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman

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It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content, …

Ethics In Government At The Local Level, Vincent R. Johnson

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No abstract provided.

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

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America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

Markets & Democracy: The Illegitimacy Of Corporate Law, Daniel J.H. Greenwood

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Corporate law does not conform to ordinary democratic norms. Unlike human citizens, corporations may decide which law will govern their most fundamental acts of self-governance. The corporate law corporation choose in turn influences the corporate goals and decision-making processes that determine what the corporation looks for in corporate law in a reflexive system independent of ordinary political processes.

This system seems on its face to violate the most fundamental principle of popular sovereignty–all non-Delaware citizens of the United States are excluded from even formal participation in the process of determining American corporate law, and even Delaware citizens are reduced to …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

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Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign’s power, enable the sovereign to make such commitments. This essay advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems – undercommitment and overcommitment – between which they must steer: an actor that can bind itself …

Out Of Bounds: San Francisco's Homeless Policies, Alexandra Flynn

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Homelessness, both a legal and public policy issue, has dominated the City of San Francisco government agenda for over fifteen years. Despite the front-and-center nature of homelessness, the policies enacted have done little to reduce the count. This paper, first, presents San Francisco’s new approach to the issue; namely, the creation of a new and far more limited class of “chronically homeless” persons. This first section includes an examination of the causes of homelessness, the physical alienation of homeless persons through “quality of life” laws, and recent policy initiatives used to social exclude the bulk of homeless persons by limiting …

Constitutionalism Through The Looking Glass Of Latin America, Miguel Schor

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This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article …

The High School Attainment Credit: A Tax Credit Encouraging Students To Graduate From High School, David Richard Hansen

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High school dropouts are a serious problem facing America today. High school dropouts are more likely to be unemployed, earn less money when employed, place a larger burden on the government by requiring public assistance (welfare), and are more likely to be prone to a life of crime and violence than high school completers. While government at all levels continues to focus on schools and teachers in solving the dropout problem, this paper shows how parents are where the focus should lie. This paper proposes a revolutionary tax credit, the High School Attainment Credit (“HSAC”), which would cost-effectively eradicate the …

Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan

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Abstract This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

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Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

Public Agencies As Lobbyists, Jody Freeman

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No abstract provided.

The North Korean Nuclear Crisis: Past Failures And Present Solutions, Morse Tan

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North Korea has recently announced that it has developed nuclear weapons and has pulled out of the six-party talks. These events do not emerge out of a vacuum, and this article lends perspective based on an interdisciplinary lens that seeks to grapple with the complexities and provide constructive approaches based on this well-researched understanding. This article analyzes political, military, historical, legal and other angles of this international crisis.

Past dealings with North Korea have been unfruitful because other nations do not recognize the ties between North Korean acts and its ideology and objectives. For a satisfactory resolution to the current …

Book Review: Forensic Linguistics, Dru Stevenson

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Review of John Gibbons' text "Forensic Linguistics"