Law Commons^™

A Major Answer To The Major Questions Doctrine, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.

The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an …

The "Right To City" In The Era Of Crowdsourcing, Alexandra Flynn

All Faculty Publications

This article explores the meaning and context of crowdsourcing at the municipal scale. In order to legitimately govern, local governments seek feedback and engagement from actors and bodies beyond the state. At the same time, crowdsourcing efforts are increasingly being adopted by entities – public and private – to digitally transform local services and processes. But how do we know what the “the right to the city” (RTTC) means when it comes to meaningful and participatory decision-making? And how do we know if participatory efforts called crowdsourcing—a practice articulated in a 2006 Wired article in the context of the …

Nondelegation In The States, Benjamin Silver

Vanderbilt Law Review

American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This Article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This Article analyzes this mess of state nondelegation jurisprudence, arguing that …

Business, Human Rights, And Transitional Justice: Overcoming The Regulatory Dysfunction Of International Law, Jelena Aparac

Global Business Law Review

It is said that traditional international public law is state-centric and concerns mostly State obligations and responsibility. For this, it excluded corporate actors from any accountability mechanism, even when the corporations contribute to armed conflicts and international crimes. International law does not provide a clear definition of what amounts to “subjects” under this set of rules or criteria for how to determine legal personality. At the same time, some branches of international public law directly regulate corporate actions, namely international economic law and international humanitarian law. Conversely, international courts and tribunals have accepted the corporate jus standi, in some …

Examining The Social Security Tribunal’S Navigator Service: Access To Administrative Justice For Marginalized Communities, Laverne Jacobs, Sule Tomkinson

Law Publications

An accessible MS Word version of this document is available for download at the bottom of this screen under "Additional files."

This report provides the findings, analysis and recommendations of a research study conducted on the federal Social Security Tribunal’s Navigator Service (SST Navigator Service). The SST Navigator Service was established in 2019 for tribunal users without a professional representative. The study examines the use of the Navigator Service for Canada Pension Plan–Disability (CPP–Disability) appeals heard by the Income Security - General Division of the Social Security Tribunal.

This research study focuses on access to administrative justice on the …

The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey

All Faculty Publications

Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained …

Comments On Executive Ruilemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Brexit Bt Susan Rose-Ackerman, Nicholas Almendares

Chicago-Kent Law Review

No abstract provided.

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

All Faculty Publications

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu

U.S. Supreme Court Briefs

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific methods …

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

Foreword (Public Law), Paul Craig

Articles by Maurer Faculty

No abstract provided.

La Méthode Comparative En Droit Public, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

Regulating Extraterritoriality: New Frontiers In Public Law, Danielle Ireland-Piper

Danielle Ireland-Piper

No abstract provided.

Public Law In A Comparative And Inter-Disciplinary Paradigm, Danielle Ireland-Piper

Danielle Ireland-Piper

No abstract provided.

Comparative Legal Traditions: Text, Materials, And Cases On Western Law. 3rd Edition., Paolo Carozza, Mary Glendon, Colin Picker

Paolo G. Carozza

This new edition includes some significant revisions since the last edition was published in 1994. The new edition includes: A greater emphasis on Public Law in the Continental and Common law traditions; More coverage of the impact of the regional European law (EC EU and ECHR) on the legal traditions;Some updated Problems (including one concerning Mixed Jurisdictions); and Numerous updates to the Common Law Tradition materials in light of the many significant reforms in England over the last ten years.

Políticas Públicas De Fomento A La Competencia, Camilo Ossa

Camilo Ossa

In this paper you will find a description related to the constitutional framework that enables the state to intervene in the economy, in order to disaggregate the support on which is built on competition law in Colombia, without neglecting the crucial role economic regulation plays in maintaining the economic and social order, becoming interested more to discover the public policy of the State in this matter, according to the theoretical precepts that teach how the construction and implementation of public policy and the subsequent assessment of the rules of competition law to determine which state, according to the theoretical postulates, …

Deployment Of Geoengineering By The Private And Public Sector: Can The Risks Of Geoengineering Ever Be Effectively Regulated?, Daniela E. Lai

Daniela E Lai

Geoengineering has been described as any large-scale environmental manipulation designed with the purpose of mitigating the effects of climate change without decreasing greenhouse gas emissions (GHGs). Currently there are no specific rules regulating geoengineering activities particularly if geoengineering is deployed in areas beyond national jurisdiction. This article argues that, in order to mitigate the risks of geoengineering, there needs to be effective regulation of its deployment both in international and domestic law. The risks of geoengineering can only be effectively regulated if there is international cooperation between all levels of governments and private individuals involved in the research and development …

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Planting Seeds Of Order: How The State Can Create, Shape, And Use Customary Law, Bryan H. Druzin

Bryan H. Druzin

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order. The paper, however, draws a sharp divide …

Fundamentos De La Aplicación Pública Del Derecho De La Competencia, Camilo Ossa

Camilo Ossa

This paper aims to focus attention on one of the essential aspects of antitrust law in Colombia, like its public enforcement, or in other words, the power of the State, delegated by law to the Superintendency of Industry and Commerce as the national authority on competition-this according to the provisions of article 6 of Law 1340 of 2009 - to advance administrative investigations aimed to punish those people, natural or legal entities that violate the provisions of the relevant legislation in order to safeguard rights such as freedom of competition, efficiency in markets, free enterprise, economic freedom and ultimately to …

The Cosmopolitan Turn In Constitutionalism: An Integrated Conception Of Public Law, Mattias Kumm

Indiana Journal of Global Legal Studies

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn: it has to occupy itself with the global legitimacy conditions for the exercise of state sovereignty. Contrary to widely made implicit assumptions in constitutional theory and practice, constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights-respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is …

One Redeeming Quality About The 112th Congress: Refocusing On Descriptive Rather Than Evocative Short Titles, Brian Christopher Jones

Brian Christopher Jones

For all intents and purposes the 112th Congress has been deemed a massive failure by most; fewer laws enacted and contemptuous debates characterized the session’s most lambasted qualities. However, one redeemable aspect was present: a focus back on descriptive and technical words for short titles, rather than evocative or tendentious terms. When compared to the 111th Congress, the use of evocative words slowed while the use of technical terms increased. This is the first time this has happened since the 101st-102nd Congress (1989-1993). Additionally, it is the largest separation between technical and evocative words since the 103rd Congress (1993-1995). Yet …

Dual Standards For Third-Party Intervenors: Distinguishing Between Public-Law And Private-Law Intervention, Justin P. Gunter

Vanderbilt Law Review

Courts stand as the final arbiters of many important and controversial issues in the United States. While it is the province of the judicial branch to hear "cases" and "controversies" that impact the immediate parties to a suit, many modern suits impact unrepresented parties and thus have policy implications. To describe this phenomenon, scholars use the terms "private law" and "public law." As public law gained greater prominence, commentators began to realize the need to revise the Federal Rules of Civil Procedure to facilitate this type of litigation. Historically, unrepresented parties who were affected by a suit could use the …

Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain

Faculty Scholarship

Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …

Managerial Judging And Substantive Law, Tobias Barrington Wolff

All Faculty Scholarship

The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial …

The (Re-) Constitution Of The Public, Gianluigi Palombella

Gianluigi Palombella

This article deals with the prospect of public law in global governance. It analyses firstly the foundations of modern public law and considers what is left of them in the global setting. Are they still holding through States’ de-centering practices, detached from the legitimating grounds of the modern ‘idea of publicness’? What is called here the duality of public law (in its State-related political and juridical strands) fades and decouples in the sphere where inherently ‘global’ legalities originate of a deracinated type: the distinctively global ‘public’ only provides a ‘suspended public law’ and politically unsaturated. The Constitution of the Public …

Plurality Of Political Opinion And The Concentration Of The Media, Maurice Stucke

Book Chapters

No abstract provided.

A Tale Of Two Maps: The Limits Of Universalism In Comparative Judicial Review, Adam M. Dodek

Osgoode Hall Law Journal

For most of the twentieth century, the dominant paradigm in comparative public law was particularism. This was accompanied by a strong skepticism towards universalist features and possibilities in public law and, especially, constitutional law. With the rise of judicial review after World War I--and especially in Eastern Europe after the collapse of the Soviet Union--comparative judicial review has begun to flourish. However, comparative scholarship on judicial review overemphasizes the centrality of "the question of legitimacy" of judicial review in a democratic polity. This has been a result of the mistaken extrapolation of the American debate over judicial review to other …

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin E. Zimring, Jeffrey Fagan, David T. Johnson

Franklin E. Zimring

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 96 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast, has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in …