Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- BLR (50)
- University of Michigan Law School (13)
- Seattle University School of Law (9)
- SelectedWorks (9)
- University of San Diego (8)
-
- Selected Works (6)
- University of Pennsylvania Carey Law School (5)
- Loyola University Chicago, School of Law (4)
- University of Maryland Francis King Carey School of Law (2)
- Vanderbilt University Law School (2)
- American University Washington College of Law (1)
- Brooklyn Law School (1)
- Emory University School of Law (1)
- Liberty University (1)
- Maurer School of Law: Indiana University (1)
- New York Law School (1)
- Roger Williams University (1)
- Schulich School of Law, Dalhousie University (1)
- Singapore Management University (1)
- Syracuse University (1)
- University of Denver (1)
- University of New Hampshire (1)
- University of Pittsburgh School of Law (1)
- Wayne State University (1)
- Keyword
-
- Public Law and Legal Theory (59)
- Law and Society (29)
- Constitutional Law (27)
- Politics (21)
- Jurisprudence (19)
-
- Law and Economics (18)
- Civil Rights and Discrimination (15)
- International Law (15)
- General Law (14)
- Judges (11)
- Courts (10)
- Comparative and Foreign Law (9)
- Human Rights Law (9)
- Legislation (9)
- Social Welfare (9)
- Administrative Law (8)
- Economics (8)
- Criminal Law and Procedure (7)
- Democracy (7)
- Dispute Resolution (6)
- International Trade (6)
- State and Local Government Law (6)
- Corporations (5)
- Critical race theory (5)
- Intellectual Property Law (5)
- International law (5)
- Jurisdiction (5)
- Psychology and Psychiatry (5)
- Race and law (5)
- Religion (5)
- Publication
-
- ExpressO (40)
- Seattle University Law Review (9)
- University of San Diego Public Law and Legal Theory Research Paper Series (8)
- All Faculty Scholarship (5)
- Michigan Journal of Race and Law (5)
-
- Hou Meng (4)
- Public Interest Law Reporter (4)
- Faculty Scholarship (3)
- Michigan Law Review (3)
- Public Law and Legal Theory Papers (3)
- The Ohio State University Moritz College of Law Working Paper Series (3)
- Articles (2)
- George Mason University School of Law Working Papers Series (2)
- Gila Stopler (2)
- Vanderbilt Law School Faculty Publications (2)
- American University Law Review (1)
- Articles, Book Chapters, & Popular Press (1)
- Book Chapters (1)
- College of Law - Faculty Scholarship (1)
- Deborah M. Weissman (1)
- Donald J. Kochan (1)
- Faculty Articles (1)
- Faculty Publications and Presentations (1)
- Gianluigi Palombella (1)
- Human Rights & Human Welfare (1)
- Ibrahim Sule (1)
- Indiana Law Journal (1)
- Law Faculty Research Publications (1)
- Law Faculty Scholarship (1)
- Law and Economics Papers (1)
- Publication Type
Articles 1 - 30 of 122
Full-Text Articles in Law
High Turnover And Low Reputation? Elements Of Sociology Of The Supreme People’S Court Grand Justices (Summary), Meng Hou
Hou Meng
No abstract provided.
Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders
Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders
ExpressO
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 …
David P. Forsythe On Non-State Actors And Human Rights. Edited By Philip Alston. Oxford, Uk: Oxford University Press, 2005. 350pp., David P. Forsythe
David P. Forsythe On Non-State Actors And Human Rights. Edited By Philip Alston. Oxford, Uk: Oxford University Press, 2005. 350pp., David P. Forsythe
Human Rights & Human Welfare
No abstract provided.
Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins
Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins
ExpressO
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".
Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham
Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham
Michigan Law Review
Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected …
Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar
Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar
ExpressO
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. …
Rhode Island Court Resolves Palazzolo, Jonathan Lew
Rhode Island Court Resolves Palazzolo, Jonathan Lew
Sea Grant Law Fellow Publications
No abstract provided.
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
ExpressO
No abstract provided.
The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt
The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt
ExpressO
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
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
ExpressO
No abstract provided.
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super
Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super
Faculty Scholarship
Regulations issued by the Food and Nutrition Service, U.S. Department of Agriculture in July 2000 promote efficient and effective food stamp claims collection by the states. These regulations give states significant flexibility in tailoring their procedures on filing claims. States can incorporate waiver and compromise policies that increase efficiency and can serve low-income households.
Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley
Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley
ExpressO
No abstract provided.
The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen
The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen
ExpressO
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, …
Private Property, Development And Freedom, Steven J. Eagle
Private Property, Development And Freedom, Steven J. Eagle
George Mason University School of Law Working Papers Series
The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.
Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns
Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns
George Mason University School of Law Working Papers Series
In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion …
Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree
Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree
ExpressO
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
Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli
ExpressO
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
ExpressO
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
Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas
ExpressO
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
Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino
ExpressO
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
ExpressO
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, …
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin
Michigan Law Review
The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales, clothing …
A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity
A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity
ExpressO
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
From International Law To Law And Globalization, Paul Schiff Berman
ExpressO
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
Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman
ExpressO
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, …
In Search Of A Theory Of Public Memory: The State, The Individual, And Marcel Proust, Brian F. Havel
In Search Of A Theory Of Public Memory: The State, The Individual, And Marcel Proust, Brian F. Havel
Indiana Law Journal
This Article posits the existence and pervasiveness of an official public (or State) memory that is primarily constructed using public law devices and statements of official policy. While official public memory serves the purposes of social control and stability, it also seeks to mask contestation and is, accordingly, neither complete nor authentic. Using philosophical, scientific, and literary sources, this Article demonstrates how the affective (emotional) memory that is unique to individuals creates a permanent potential for contestation and authenticity and therefore sets a natural conceptual limit to the power of officially managed memory to contrive the past. To help establish …
A Path To Vindication Of The Rule Of Law: Administrative Court’S Generous Approach To Standing And Third Party Interventions, Ibrahim Sule
A Path To Vindication Of The Rule Of Law: Administrative Court’S Generous Approach To Standing And Third Party Interventions, Ibrahim Sule
Ibrahim Sule
No abstract provided.
Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar
Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar
University of San Diego Public Law and Legal Theory Research Paper Series
It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.
In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …
The Chief Prosecutor, Sai Prakash
The Chief Prosecutor, Sai Prakash
University of San Diego Public Law and Legal Theory Research Paper Series
Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite …