Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Public Law and Legal Theory

2009

Institution
Keyword
Publication
Publication Type
File Type

Articles 1 - 30 of 130

Full-Text Articles in Law

Report On Offense Grading In Pennsylvania, Paul H. Robinson, Criminal Law Research Group, University Of Pennsylvania Law School Dec 2009

Report On Offense Grading In Pennsylvania, Paul H. Robinson, Criminal Law Research Group, University Of Pennsylvania Law School

Faculty Scholarship at Penn Law

The Pennsylvania Legislature's Senate Judiciary Committee and House Judiciary Committee jointly commissioned this study of the criminal offense grading scheme contained in Pennsylvania criminal statutes. This Final Report, which was presented to a joint session of the two Committees on December 15, 2009, examines the extent to which current Pennsylvania law defines offenses with offense grades that are inconsistent with the relative seriousness of the offense as compared to other offenses, based upon an empirical survey of Pennsylvania residents. It also examines whether some offenses include within a single grade forms of conduct of very different degrees of seriousness ...


Regulatory Theory, Matthew D. Adler Dec 2009

Regulatory Theory, Matthew D. Adler

Faculty Scholarship at Penn Law

This chapter reviews a range of topics connected to the justification of government regulation, including: the definition of “regulation”; welfarism, Kaldor-Hicks efficiency, and the Pareto principles; the fundamental theorems of welfare economics and the “market failure” framework for justifying regulation, which identifies different ways in which the conditions for those theorems may fail to hold true (such as externalities, public goods, monopoly power, and imperfect information); the Coase theorem; and the different forms of regulation.


Chinese Judicial Pattern: Tradition And Reform(中国的司法模式:传统与改革), Meng Hou Dec 2009

Chinese Judicial Pattern: Tradition And Reform(中国的司法模式:传统与改革), Meng Hou

Hou Meng

No abstract provided.


Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel Dec 2009

Negligence And Insufficient Activity: The Missing Paradigm In Torts, David Gilo, Ehud Guttel

Michigan Law Review

Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties' incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of ...


Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha Nov 2009

Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Based upon a political compromise, in which « democratic socialists » and « social democrats » were the main protagonists, the ideology of Portuguese Constitution of 1976 was discrete, subtle. And ulterior constitutional revisions confirmed that fondamental aspect. Of course, utopia was present. But, even more present was the « hope principle ». We believe that the Brazilean constituent assembly, with the original importance of popular contributions, also had hope principle’s decisive influence. But the dinamics of the constituent assembly moderated, since the very beggining, the verbal signs of less discret ideologies. Utopia, neverthless, is very present in the aim of the « Citizen Constitution » to ...


Treaty Compliance And Violation, Beth A. Simmons Nov 2009

Treaty Compliance And Violation, Beth A. Simmons

Faculty Scholarship at Penn Law

International law has enjoyed a recent renaissance as an important subfield of study within international relations. Two trends are evident in the recent literature. First, the obsession with theoretical labels is on the decline. Second, empirical, especially quantitative, work is burgeoning. This article reviews the literature in four issues areas — security, war, and peace; international trade; protection of the environment; and human rights — and concludes we have a much stronger basis for assessing claims about compliance and violation now than was the case only a few years ago. Still, the literature suffers from a few weaknesses, including problems of selection ...


Chronicling The Complexification Of Negotiation Theory And Practice, Carrie Menkel-Meadow Nov 2009

Chronicling The Complexification Of Negotiation Theory And Practice, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private ...


Szerződésértelmezés Hermeneutika És Jogpolitika Között. A Contra Proferentem Szabály [Contract Interpretation Between Hermeneutics And Policy: The Contra Proferentem Rule], Péter Cserne Oct 2009

Szerződésértelmezés Hermeneutika És Jogpolitika Között. A Contra Proferentem Szabály [Contract Interpretation Between Hermeneutics And Policy: The Contra Proferentem Rule], Péter Cserne

Péter Cserne

This paper discusses why contract interpretation is substantially different from the interpretation of literary works and illustrates the argument with the analysis of the contra proferentem rule. It is a substantially revised version of my ‘Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective’ (2009)


The Citizens Were Heard, Donna M. Hughes Dr. Oct 2009

The Citizens Were Heard, Donna M. Hughes Dr.

Donna M. Hughes

Congratulations to the citizens of Rhode Island and national anti-trafficking advocates for the legislative victory in Rhode Island. This past week, the Rhode Island Assembly passed an unprecedented pieces of legislation that will protect victims from sex industry predators and give law enforcement the tools they need to arrest pimps, traffickers, and “johns.” 


When And How (If At All) Does Law Constrain Official Actions?, Frederick F. Schauer Oct 2009

When And How (If At All) Does Law Constrain Official Actions?, Frederick F. Schauer

Sibley Lecture Series

University of Virginia Harrison Distinguished Professor of Law Frederick Schauer delivered the University of Georgia School of Law's 105th Sibley Lecture. Schauer's lecture titled "When and How (If at All) Does Law Constrain Official Action?" took place Wednesday, Oct. 28, at 4:30 p.m. in the Hatton Lovejoy Courtroom. According to Schauer, although Americans claim to live in a country whose decisions are highly influenced by law and courts, the reality may be quite different. "Across the political spectrum officials and public figures are politically and reputationally rewarded for doing the right thing even if it violates ...


How (Not) To Think Like A Punisher, Alice G. Ristroph Oct 2009

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical ...


All That You Can’T Leave Behind: Making And Administering Laws In The Select Government Localities Of Komenda, Cape Coast, And Accra, Andrew Freeman Oct 2009

All That You Can’T Leave Behind: Making And Administering Laws In The Select Government Localities Of Komenda, Cape Coast, And Accra, Andrew Freeman

Independent Study Project (ISP) Collection

This paper is an attempt to understand how laws are created and maintained on the local level in Komenda, Cape Coast, and Accra. It explains how bylaws are created in those localities through the use of the General Assemblies. The paper then examines the judicial system in those same areas. Komenda uses an Arbitration Committee. Cape Coast and Accra both have a Circuit Court and a High Court. After detailing how the legislative and court system function, the paper compares and contrasts the different ways that the legislative and judicial branches are executed.


Speak Clearly And Carry A Big Stock Of Dollar Reserves: Sovereign Risk, Ideology, And Presidential Elections In Argentina, Brazil, Mexico, And Venezuela, Anthony Petros Spanakos, Lucio Remuzat Renno Junior Oct 2009

Speak Clearly And Carry A Big Stock Of Dollar Reserves: Sovereign Risk, Ideology, And Presidential Elections In Argentina, Brazil, Mexico, And Venezuela, Anthony Petros Spanakos, Lucio Remuzat Renno Junior

Department of Political Science and Law Faculty Scholarship and Creative Works

Partisan theories of political economy expect that bondholders will panic with the election of a left-wing presidential candidate. The latter seems to be what happened in Brazil in the 2002 presidential elections. However, quantitative analysis of perceptions of sovereign credit risk in Argentine, Brazilian, Mexican, and Venezuelan presidential elections from 1994 until 2007 shows no real evidence of a link between partisanship and perceptions of risk, even if the left-right divide is further broken down into left, center-left, center-right, right. Instead, international and domestic economic fundamentals have a stronger influence on risk evaluations. Qualitative analysis of the individual presidential elections ...


Hope In The Law, Annelise Riles Oct 2009

Hope In The Law, Annelise Riles

Cornell Law Faculty Publications

No abstract provided.


Theorizing Transnational Law - Observations On A Birthday, Susanne Baer Oct 2009

Theorizing Transnational Law - Observations On A Birthday, Susanne Baer

Articles

There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).


Senators' Prostitution Bill Is A Sham, Donna M. Hughes Dr. Sep 2009

Senators' Prostitution Bill Is A Sham, Donna M. Hughes Dr.

Donna M. Hughes

RHODE ISLAND needs a good prostitution law to halt the metastasizing problems of prostitution and sex trafficking. The growing number of spas and clubs are sordid destinations for foreign women and teens from around the Northeast. To address this problem, both the House and the Senate have passed bills they claim “close the loophole.” But the competing bills are profoundly different in their probable effectiveness. 


Recent Developments In Common Intention: Lee Chez Kee V Pp [2008] 3 Slr 447 [Case Note], Nathaniel Yong Ern Khng, Siyuan Chen Sep 2009

Recent Developments In Common Intention: Lee Chez Kee V Pp [2008] 3 Slr 447 [Case Note], Nathaniel Yong Ern Khng, Siyuan Chen

Research Collection School Of Law

The Court of Appeal recently delivered an important judgment on liability for common intention. This criminal law doctrine has demanded clarification for some time, especially in regards to what is commonly known as “twin crime” situations, ie, situations where there is a primary criminal act as well as a collateral criminal act incidental to the main goal of the participants to the primary crime. In the “twin crime” situation, the participants would have intended to commit the primary criminal act but not all would have shared in the intention of one or more unidentified members of the group to also ...


Top Us Official On Trafficking Says Lack Of Prostitution Law Creates A "Zone Of Impunity" For Traffickers, Donna M. Hughes Dr. Aug 2009

Top Us Official On Trafficking Says Lack Of Prostitution Law Creates A "Zone Of Impunity" For Traffickers, Donna M. Hughes Dr.

Donna M. Hughes

The lack of a law against indoor prostitution can create a “zone of impunity in which police can’t go, and where traffickers can exploit their prey,” according to Luis CdeBaca, Ambassador at Large to Combat Human Trafficking and Director of the Office to Monitor and Combat Trafficking in Persons in the U.S. State Department.


Law Journals Of Cssci: Which One Is More Influential In Knowledge Production(Cssci法学期刊──谁更有知识影响力), Meng Hou Jul 2009

Law Journals Of Cssci: Which One Is More Influential In Knowledge Production(Cssci法学期刊──谁更有知识影响力), Meng Hou

Hou Meng

No abstract provided.


Bankruptcy Phobia, David A. Skeel Jr. Jul 2009

Bankruptcy Phobia, David A. Skeel Jr.

Faculty Scholarship at Penn Law

As the recent economic crisis has unfolded, bankruptcy has offered possible solutions at several key junctures. The first of these solutions, often referred to as mortgage modification, was geared toward homeowners who faced the loss of their homes in the months—now several years—since the start of the subprime crisis On the corporate side, Chapter 11 was an obvious alternative when large nonbank financial institutions like Bear Stearns and AIG stumbled in 2008. But regulators repeatedly balked, and the one exception to the avoidance of bankruptcy at all costs—Lehman Brothers—was anomalous. This aversion to bankruptcy, which seems ...


Defragmentation Of Public International Law Through Interpretation: A Methodological Proposal, Anne Van Aaken Jul 2009

Defragmentation Of Public International Law Through Interpretation: A Methodological Proposal, Anne Van Aaken

Indiana Journal of Global Legal Studies

Fragmentation of public international law (PIL) is perceived as a growing problem and answers to it are proliferating. International courts and tribunals are adjudicating ever more on issues that would be considered-were they not transnational or international in nature-constitutional problems. In national law, countervailing values, or intra-constitutional conflicts, are reconciled through a balancing of those values that is usually embedded in the application of the proportionality principle. A similar mechanism in PIL remains underdeveloped from a methodological point of view. This article aims to develop a methodological proposal for defragmentation through interpretation, drawing on legal theory, to be more precise ...


From Clampdown To Limited Empowerment: Hard And Soft Law In The Calibration And Regulation Of Religious Conduct In Singapore, Eugene K. B. Tan Jul 2009

From Clampdown To Limited Empowerment: Hard And Soft Law In The Calibration And Regulation Of Religious Conduct In Singapore, Eugene K. B. Tan

Research Collection School Of Law

The focus of Singapore's response to terrorism post 9/11 has been to reach out to the “moderate, mainstream” Muslims as a bulwark against societal implosion. This article examines the broad-based endeavor toward “religious moderation.” While coercive draconian legislation remain the mainstay against extremists and radicals, the mobilization of soft law, aspirational norms, and values are consciously woven into the state's endeavors to enhance society's resilience and cohesion. They also seek to regulate religious conduct at a time when the state wishes to entrench secularism as a cornerstone of the governance of a multi-racial, multireligious society. Rights ...


Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition Of The Death Penalty And Convincing Other States To Follow Suit, James Johnston Jun 2009

Executing Capital Punishment Via Case Study: A Socratic Chat About New Jersey's Abolition Of The Death Penalty And Convincing Other States To Follow Suit, James Johnston

James B Johnston

For those who detest capital punishment Christmas arrived early in 1997. On December 17, 2007 New Jersey became the first State to abolish the death penalty via enactments from both the executive and legislative branches of government. The responses both domestically and abroad have been overwhelmingly supportive. New Jersey was able to do so thanks to the work of the New Jersey Death Penalty Study Commission; a blue ribbon panel of individuals appointed by Governor Corzine to study capital punishment and provide their findings to the State Legislature and the Governor. The commission recommended the death penalty be abolished and ...


Whistleblowers' Protection Legislation: In Search For Model For Nigeria, Ibrahim Sule Jun 2009

Whistleblowers' Protection Legislation: In Search For Model For Nigeria, Ibrahim Sule

Ibrahim Sule

No abstract provided.


Rhode Island's Carnival Of Prostitution, Donna M. Hughes Dr. Jun 2009

Rhode Island's Carnival Of Prostitution, Donna M. Hughes Dr.

Donna M. Hughes

AFTER MY EXPERIENCE at the Senate Judiciary Committee last Thursday, I believe Rhode Island is headed for a human rights disaster and nationwide political embarrassment. It is becoming apparent that the Senate is not going to pass a much-needed prostitution bill. Rhode Island will continue to have an expanding number of spa-brothels, prostitution of minors in clubs, and no law that will enable the police to stop it. 


The Transparency President? The Obama Administration And Open Government, Cary Coglianese Jun 2009

The Transparency President? The Obama Administration And Open Government, Cary Coglianese

Faculty Scholarship at Penn Law

President Obama has trumpeted transparency as a major part of his reform agenda, promising an "unprecedented" degree of governmental openness and overseeing a variety of open government reforms, from changes in Freedom of Information Act policies to the creation of new websites like Recovery.Gov. Although transparency is politically popular, and the Obama Administration benefits in the short run by contrasting itself with the Bush Administration's reputation for secrecy, in the long run President Obama's rhetoric on openness in government may backfire politically. Too much emphasis on making government a fishbowl will only raise expectations about an unattainable ...


Cuarto Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García Jun 2009

Cuarto Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García

Bruno L. Costantini García

Memorias del Cuarto Congreso Nacional de Organismos Públicos Autónomos

"El papel de los Organismos Públicos Autónomos en la Consolidación de la Democracia"


Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman Jun 2009

Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman

Testimony

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from ...


Transparency And Public Participation In The Rulemaking Process: Recommendations For The New Administration, Cary Coglianese, Heather Kilmartin, Evan Mendelson Jun 2009

Transparency And Public Participation In The Rulemaking Process: Recommendations For The New Administration, Cary Coglianese, Heather Kilmartin, Evan Mendelson

Faculty Scholarship at Penn Law

Each year, federal regulatory agencies create thousands of new rules that affect the economy. When these agencies insulate themselves too much from the public, they are more likely to make suboptimal decisions and decrease public acceptance of their resulting rules. A nonpartisan Task Force on Transparency and Public Participation met in 2008 to identify current deficiencies in agency rulemaking procedures and develop recommendations for the next presidential administration to improve the quality of regulations and the legitimacy of regulatory proceedings. This report summarizes the Task Force's deliberations, indicating ways that federal agencies could do a better job of seeking ...


O Que É Uma Universidade?, Paulo Ferreira Da Cunha May 2009

O Que É Uma Universidade?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Pouca gente sabe hoje o que é uma Universidade, a sério. Confunde-se muito Universidade e super-mercado de aulas, ou fábrica de « investigação » ou « pesquisa », assim como se confunde serviço público com negócio, vocação com interesse pessoal, etc. É a própria essência da Universidade que está em causa. A confusão é grande no público, que vê a Universidade sobretudo como uma forma de promoção social, pelos diplomas. A confusão não é menor na própria Universidade. Os universitários mais responsáveis interrogam-se sobre a sua função, o sentido do trabalho que fizeram e fazem, e a sua sorte na universidade que vem aí ...