Law Commons^™

Using Social Norms As A Substitute For Law, Bryan H. Druzin

Bryan H. Druzin

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

California’S Good Samaritan Law: Correcting Ambiguities To Induce Action, Sara Popovich

Sara Popovich

This Note argues that California should amend its Good Samaritan law by either creating a duty to assist or clarifying the statute. It first outlines the history of Good Samaritan law in California and describe developments in the law through today. It then argues that Good Samaritan law in California is ineffective because citizens still fear legal liability and thus refuse to assist during emergencies. Finally, it proposes specific changes to the California Good Samaritan law.

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

Putting The Democracy In Democracy And Distrust: The Coherentist Case For Representation Reinforcement, Michael C. Dorf

Michael C. Dorf

Nearly a quarter of a century after its publication, Democracy and Distrust remains the single most perceptive justificatory account of the work of the Warren Court and modern constitutional law more broadly. Yet, the continuing influence of John Hart Ely’s process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe’s "Puzzling Persistence of Process-Based Constitutional Theories" and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with …

Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber

Daniel A Farber

Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.

This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …

The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, Philip Nichols

Philip M. Nichols

The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands …

Protecting Marine Biodiversity In Latin America Through Area-Based Fisheries Regulation, Xiao Recio-Blanco

Xiao Recio-Blanco

Governments all around the world have addressed the challenge of marine resources management enacting laws and enforcing public policies. To date, most of these initiatives have failed. In Latin America, sophisticated environmental protection statutes are already in place. Unfortunately, these statutes are largely overlooked by sea users and government officials. Lack of compliance has become the most significant hurdle to the sustainable use of Latin America’s marine resources.

Recently, governments and Non-Governmental Organizations in Latin America have showed increased interest in Marine Spatial Planning (MSP). MSP is a process that analyzes the spatial distribution of human activities at sea. The …

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

Harold A. McDougall III

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

Re-Reading Weber In Law And Development: A Critical Intellectual History Of "Good Governance" Reform, Chantal Thomas

Chantal Thomas

The "Weberianism" of the modern age derives from the influence of three theoretical concepts in Weber's work. First, Weber described the development of "logically formal rationality" in governance as central to the rise of Western capitalist democracy. Second, Weber posited that Protestant religious ethics had helped to promote certain economic behaviors associated with contemporary capitalism. Third, Weber identified the rise of bureaucratic governance, as the primary means of realizing logically formal rationality, as distinctly modern. This essay examines the influence of these basic insights on discourse on legal reform in developing countries. The prioritization of legal and institutional reforms to …

The Rise Of Judicial Governance In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall

Amy J. Sepinwall

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or …

The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin

Bryan H. Druzin

A Quantum Congress, Jorge R. Roig

Jorge R Roig

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

Beyond The First Decade: A Forward-Looking History Of Latcrit Theory, Community And Praxis, Berta E. Hernández-Truyol, Angela Harris, Francisco Valdés

Berta E. Hernández-Truyol

Part I of this Afterword sketches an overview of the jurisprudential and intellectual precursors that have influenced the emergence and development of LatCrit theory during this past decade. Part II turns squarely to the origins and the efforts of this enterprise, as we have endeavored to articulate the LatCrit subject position in socially relevant ways. Part III explains the special emphasis on internationalism manifest both in our symposia and more broadly in our portfolio of projects. Part IV then concludes with an outline of some key points that might help to inform our second-decade agenda. In presenting our account of …

The Future Of Polyamorous Marriage: Lessons From The Marriage Equality Struggle, Hadar Aviram, Gwendolyn Manriquez Leachman

Hadar Aviram

Amidst the recent legal victories and growing public support for same-sex marriage, numerous polyamorous individuals have expressed interest in pursuing legal recognition for marriages between more than two consenting adults. This Article explores the possibilities that exist for such a polyamorous marriage equality campaign, in light of the theoretical literature on law and social movements, as well as our own original and secondary research on polyamorous and LGBT communities. Among other issues, we examine the prospect of prioritizing the marriage struggle over other forms of nonmarital relationship recognition; pragmatic regulative challenges, like taxation, healthcare, and immigration; and how law and …

Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson

Jennifer Jackson

We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Darren L Hutchinson

Abstract

Preventing Balkanization or Facilitating Racial Domination: A Critique of the

New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.” …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin Hoerner

Benjamin O Hoerner

In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry of …

A Theory Of Existence Of The Fourth Control Branch Of The Government: A Comparative Analysis, Gabriel Balayan

Gabriel Balayan

This paper is aimed to discuss factual existence of the fourth-independent branch of the government in the US, which could be titled as “Control Branch”. Despite the fact that it’s not constitutionally or statutorily recognized as a separate branch of the government, on the example of US Government Accountability Office and Inspector General Community, author proves the factual independence and place of this “branch” in a system of federal government, its role as an independent actor in a line with legislative, executive and judicial branches. Some examples of interaction among “four branches” are provided. Throughout the paper theoretic discussion is …

The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss

Dorit R. Reiss

The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …

Crossing The Fault Line In Corporate Criminal Law, Amy Sepinwall

Amy J. Sepinwall

Why is it that so few bankers have been prosecuted and punished in the wake of the financial meltdown? Pundits are quick to point to inadequate funding for addressing financial crime or, more cynically, the revolving door between government regulatory agencies and Wall Street. But the ultimate answer may be at once more banal and more dispiriting, lying as it does at the very foundations of our criminal law.

The conception of responsibility underpinning much of our criminal law contemplates the individual in isolation from others. As a result, our criminal law has tremendous difficulty tracking culpability in organizational contexts. …

On The Conceptual Confusions Of Jurisprudence, Aaron Rappaport

Aaron Rappaport

For more than half a century, legal theorists have tried to identify and describe the concept of law, employing a method called “conceptual analysis” to pursue this goal. Yet the details of that methodology remain obscure, its merits largely accepted without careful analysis. A reassessment is long past due. This paper offers the first comprehensive survey of the way conceptual analysis has been used in legal theory. The paper identifies four different forms of conceptual analysis – the empirical, intuitive, categorical and contingent methods of analysis. After clarifying the core assumptions of each approach, the paper evaluates whether any of …

"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson

Darren L Hutchinson

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court’s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …