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Public Law and Legal Theory

1996

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Articles 1 - 30 of 31

Full-Text Articles in Law

Revitalizing Environmental Federalism, Daniel C. Esty Dec 1996

Revitalizing Environmental Federalism, Daniel C. Esty

Michigan Law Review

Politicians from Speaker Newt Gingrich to President Bill Clinton, cheered on by academics such as Richard Revesz, are eagerly seeking to return authority over environmental regulation to the states. In the European Union, localist opponents of environmental decisionmaking in Brussels rally under the banner of "subsidiarity." And in debates over international trade liberalization, demands abound for the protection of "national sovereignty" in environmental regulation. All of these efforts presume that a decentralized approach to environmental policy will yield better results than more centralized programs. This presumption is misguided. While the character of some environmental concerns warrants a preference for local ...


Ten Years Of Takings, Gregory S. Alexander Dec 1996

Ten Years Of Takings, Gregory S. Alexander

Cornell Law Faculty Publications

No area of property law has been more controversial in the past decade than takings. No aspect of constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the just compensation question. No question concerning constitutional property is more intractable than what sorts of government regulatory actions constitute uncompensated "takings" of private property.

Limitations of space, not to mention my own ambivalence about many of the issues, prevent me from developing a complete normative theory of the proper scope of the Takings Clause. My aim here is vastly more modest: to outline the basic ...


Judicial Review Of Petitions, Cynthia R. Farina Jul 1996

Judicial Review Of Petitions, Cynthia R. Farina

Cornell Law Faculty Publications

Senate bill 343, at least, is careful to say that upon denial of a petition, the denial should be deemed "agency action" for purposes of judicial review. Only at one point in the legislation does the statute speak explicitly to the standard, and that's with respect to the petition for putting an existing major rule on the schedule for analysis. The bill says that the agency's action shall be overturned by the court only on the determination that the action was arbitrary and capricious or an abuse of discretion, which is what we assumed the standard would have ...


David Shapiro's Adversary Statement On Federalism, Patrick E. Higginbotham May 1996

David Shapiro's Adversary Statement On Federalism, Patrick E. Higginbotham

Michigan Law Review

A Review of David L. Shapiro, Federalism: A Dialogue


Libertarianism With A Twist, Heidi Li Feldman May 1996

Libertarianism With A Twist, Heidi Li Feldman

Michigan Law Review

A Review of Richard A. Epstein, Simple Rules for a Complex World


Reading The Legal Process, Anthony J. Sebok May 1996

Reading The Legal Process, Anthony J. Sebok

Michigan Law Review

A Review of Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in eh Making and Application of Law


Overcoming Posner, Gerard V. Bradley May 1996

Overcoming Posner, Gerard V. Bradley

Michigan Law Review

A Review of Richard A. Posner, Overcoming Law


The Concept Of Law Revisited, Leslie Green May 1996

The Concept Of Law Revisited, Leslie Green

Michigan Law Review

A Review of H.L.A. Hart, The Concept of Law Second Edition


Public Choice, Public Opinion, And The Fuller Court, Jonathan R. Macey Mar 1996

Public Choice, Public Opinion, And The Fuller Court, Jonathan R. Macey

Vanderbilt Law Review

Everyone has his own, personal view about what role the United States Supreme Court should play in American political life. Conservatives of the Robert Bork variety prefer that supreme court justices treat congressional enactments with great deference and respect.' Liberals of the Laurence Tribe persuasion like judges to take an active role in ensuring certain individual rights, such as the right to abortion, while giving Congress latitude to regulate in the sphere of economic rights. Libertarians of the Bernard Siegan orientation strenuously deny the difference between economic liberties and other sorts of human rights and would have judges actively protect ...


Women's Rights And Political Economy, Tamara Lothian Jan 1996

Women's Rights And Political Economy, Tamara Lothian

Tamara Lothian

No abstract provided.


How Charitable Organizations Influence Federal Tax Policy: "Rent-Seeking" Charities Or Virtuous Politicians?, Nancy J. Knauer Jan 1996

How Charitable Organizations Influence Federal Tax Policy: "Rent-Seeking" Charities Or Virtuous Politicians?, Nancy J. Knauer

Nancy J. Knauer

Tax-exempt charitable organizations exert considerable influence over Congress, the Department of the Treasury, and the Internal Revenue Service in matters dealing with exemption from federal income tax and the tax deductibility of charitable contributions. This Article uses both public choice and public interest analysis to help identify various features of the charitable community and explain how exempt organizations weild political influence despite the restrictions placed on their activities under the tax code. Arguing that the influence of charitable organizations over tax policy can be explained from either a public choice or public interest vantage point, the Article concluds that the ...


Feminism For Men: Legal Ideology And The Construction Of Maleness, Nancy Levit Jan 1996

Feminism For Men: Legal Ideology And The Construction Of Maleness, Nancy Levit

Nancy Levit

It may seem a little odd to suggest that feminist theory has overlooked men. Yet, in several important respects, apart from the role of culprit, men have been largely omitted from feminism. Feminist legal theorists have paid mild attention to the "Can men be feminists?" question but this issue is usually relegated to footnotes. The negative effect gender role stereotypes have on men is typically subsidiary to the main focus of feminist legal literature, which has concentrated on documenting the patterns of subordination of women and on questions of feminist ideology.

The primary purpose of this article is to suggest ...


Competition Policy In America 1888-1992: History, Rhetoric, Law, Rudolph J.R. Peritz Jan 1996

Competition Policy In America 1888-1992: History, Rhetoric, Law, Rudolph J.R. Peritz

Books

Americans have long appealed to images of free competition in calling for free enterprise, freedom of contract, free labor, free trade, and free speech. This imagery has retained its appeal in myriad aspects of public policy--for example, Senator Sherman's Anti-Trust Act of 1890, Justice Holmes's metaphorical marketplace of ideas, and President Reagan's rhetoric of deregulation.

In Competition Policy in America, 1888-1992, Rudolph Peritz explores the durability of free competition imagery by tracing its influences on public policy. Looking at congressional debates and hearings, administrative agency activities, court opinions, arguments of counsel, and economic, legal, and political scholarship ...


Rising Temperatures: Rising Tides, Prof. Elizabeth Burleson Jan 1996

Rising Temperatures: Rising Tides, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Transboundary environmental problems do not distinguish between political boundaries. Global warming is expected to cause thermal expansion of water and melt glaciers. Both are predicted to lead to a rise in sea level. We must enlarge our paradigms to encompass a global reality and reliance upon global participation.


A Dozen Propositions On Private Property, Public Rights, And The New Takings Legislation, Carol M. Rose Jan 1996

A Dozen Propositions On Private Property, Public Rights, And The New Takings Legislation, Carol M. Rose

Washington and Lee Law Review

No abstract provided.


"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander Jan 1996

"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander

Cornell Law Faculty Publications

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize ...


Can Families Be Efficient? A Feminist Appraisal, Ann Laquer Estin Jan 1996

Can Families Be Efficient? A Feminist Appraisal, Ann Laquer Estin

Michigan Journal of Gender & Law

This Article examines the convergence of feminist and law and economics theory on family law questions, particularly issues of marriage and divorce. Both feminist legal theory and law and economics analysis have come to occupy a significant place in the American legal academy, demonstrated by growing numbers of conferences, journals, casebooks and monographs, and electronic mail lists in each area. Not surprisingly, as the two fields have grown, they have begun to touch, to overlap, and occasionally to come into conflict. This process has been evident in the extensive literature on sex discrimination in employment and is increasingly apparent in ...


Is International Law Fair?, Gerry J. Simpson Jan 1996

Is International Law Fair?, Gerry J. Simpson

Michigan Journal of International Law

Review of Fairness in International Law and Institutions by Thomas M. Franck


The Priority Paradigm: Private Choices And The Limits Of Equality, Dorothy E. Roberts Jan 1996

The Priority Paradigm: Private Choices And The Limits Of Equality, Dorothy E. Roberts

Faculty Scholarship at Penn Law

No abstract provided.


Assessing Evidence, Richard D. Friedman Jan 1996

Assessing Evidence, Richard D. Friedman

Reviews

David A. Schum's Evidential Foundations of Probabilistic Reasoning, 2 C.G.G. Aitken's Statistics and the Evaluation of Evidence for Forensic Scientists,3 and Bernard Robertson and G.A. Vignaux's Interpreting Evidence: Evaluating Forensic Science in the Courtroom4 all have something to tell us about how to use and evaluate evidence. Although the books are addressed to different primary audiences5 and their authors come from a variety of disciplines and from distant points of the English-speaking world,6 all three help draw the connection between underlying theory and presentation in the courtroom. Though Schum uses numerous examples ...


Some Recent Developments In Canadian Constitutional Theory With Particular Reference To Beatty And Hutchinson, Richard F. Devlin Frsc Jan 1996

Some Recent Developments In Canadian Constitutional Theory With Particular Reference To Beatty And Hutchinson, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

This article provides a critique of recent books by two prominent Canadian constitutional theorists - David Beatty's Constitutional Law in Theory and Practice and Allan Hutchinson's Waiting for CORAF: A Critique of Law and Rights. Devlin begins with a brief overview of the various positions that have been staked out in writing on the Canadian Charter of Rights and Freed oms during the last decade. He identifies three broad constituencies: Charter advocates who assume that rights are an "unqualified human good" and that judicial review is an important check on majoritarian zealotry; Charter critics who emphasize the undemocratic nature ...


Sanctuary, Redlight Districts, And Washington, D.C.: Some Observations On Neuman's Anomalous Zones (Symposium: Surveying Law And Borders), William I. Miller Jan 1996

Sanctuary, Redlight Districts, And Washington, D.C.: Some Observations On Neuman's Anomalous Zones (Symposium: Surveying Law And Borders), William I. Miller

Articles

The claim is often made that boundaries obviate disputes if they are clear. But boundaries are inseparable from disputes; they seem to invite them as much as obviate them. Note how natural the collocations "disputed boundary" and "boundary dispute" are. The conventional view that one hears a lot in law schools is that once a bright line is drawn then a boundary is "settled." But that supposes that a clear boundary need not be defended or continually justified or that internal changes in the entity it circumscribes and in some ways defines do not affect the integrity of the boundary ...


On The Genealogy Of Moral Hazard, Tom Baker Jan 1996

On The Genealogy Of Moral Hazard, Tom Baker

Faculty Scholarship at Penn Law

No abstract provided.


Blame And Danger: An Essay On Preventive Detention, Stephen J. Morse Jan 1996

Blame And Danger: An Essay On Preventive Detention, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.


"Originalist" Values And Constitutional Interpretation, Richard Kay Jan 1996

"Originalist" Values And Constitutional Interpretation, Richard Kay

Faculty Articles and Papers

No abstract provided.


On Conduits And Voices, Thomas Morawetz Jan 1996

On Conduits And Voices, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.


Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining Jan 1996

Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining

Articles

The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.


Washington Defendants' New Right Of Pre-Trial Flight, Christopher T. Igielski Jan 1996

Washington Defendants' New Right Of Pre-Trial Flight, Christopher T. Igielski

Seattle University Law Review

Certainly, it is only by disregarding the "victim's rights" that one can begin to fathom the Washington Supreme Court's decision in State v. Jackson. This decision reversed the conviction of a man who raped his four-year-old niece on Christmas Eve in 1979, causing her to contract gonorrhea. Following his arraignment, Jackson fled and failed to appear at his trial. After attempts to locate Jackson failed, a trial was held in absentia' and he was found guilty of rape, with sentencing suspended pending his return to custody. Jackson evaded the law for nearly thirteen years.'0 Shortly after his ...


Table Of Contents Jan 1996

Table Of Contents

Richmond Public Interest Law Review

The American Presidency in the Twenty-First Century


Editorial Notes, Robert D. Gehringer Jan 1996

Editorial Notes, Robert D. Gehringer

Richmond Public Interest Law Review

The Editorial Board notes the remarkable evolution of the American Presidency during the twentieth century.