Law Commons^™

Constitutional Patriotism As Europe’S Public Philosophy? On The Responsiveness Of Post-National Law, Paul Linden-Retek

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Published as Chapter 13 in Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law, Jan Komárek, ed.

This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This …

The Wto As A Forum For Regulatory Cooperation: Transparency And Open Plurilateral Agreements, Padideh Ala'i

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No abstract provided.

Guide To Bill Of Attainder Clauses In Article I, Sections 9 And 10, Matthew J. Steilen

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These are commentaries on the Bill of Attainder Clauses in Article I, sections 9 and 10. Each is 2000 words long. They are forthcoming in the 3d edition of Heritage Guide to the Constitution. Topics covered include the history of English bills of attainder, the meaning of "bill," "notorious," "attainder," and other key terms, bills of attainder passed against loyalists during the American revolution, the Josiah Philips case, the legislative history of the clauses in the Philadelphia Convention, early Supreme Court decisions involving bills of attainder, and the modern doctrine. Inline citations and a short bibliography are included. The author …

Preface, Rebecca Redwood French

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No abstract provided.

Genetic Freedom Of The Seas In The Age Of Extractivism: Marine Genetic Resources In Areas Beyond National Jurisdiction, Irus Braverman

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Areas beyond national jurisdiction are the largest environment on earth and marine genetic resources are its new, and perhaps final, frontier. It is no wonder, then, that the scope and protection of marine genetic resources in this oceanic space have been hotly contested and that a new doctrine for ocean governance has been coined in this context: mare geneticum. This chapter examines different definitions of marine genetic resources debated in the ongoing treaty negotiations over areas beyond national jurisdiction (the BBNJ), the conflicting interests involved, and how the law-science relationship has figured in these debates. Ultimately, many of the debates …

Amphibious Legal Geographies: Toward Land–Sea Regimes, Irus Braverman

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This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the juridical thinking that has enshrined the land/sea divide into contemporary governmental infrastructures, disciplinary traditions, and regulatory apparatuses, and charts the disastrous implications that such a legal fixation on the land/sea binary has wrought on human and other-than-human lifeworlds. As the collection proceeds, a second broad theme emerges, building on the first: when one rethinks the abstraction of law as played out on the ground, the “ground” itself shifts and fundamental divisions between land and sea that serve as the …

Wesley Newcomb Hohfeld: On The Difficulty Of Becoming A Law Professor, John Henry Schlegel

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Published as Chapter 18 in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries, Shyam Balganesh, Ted Sichelman & Henry Smith, eds.

Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the …

Academic Brands And Cognitive Dissonance, Mark Bartholomew

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Published as Chapter 7 in Academic Brands: Distinction in Global Higher Education (Mario Biagioli & Madhavi Sunder, eds., Cambridge University Press, 2022).

It is hard to reconcile the research university’s supposed reason for being – the reasoned pursuit of knowledge – with its methods for building brand awareness and equity. Just like pitches for other luxury goods, the selling of higher education depends on irrational appeals devoid of information and marketing missives meant to hug the line between legally protected puffery and outright fraud. Although universities have always borrowed from the selling strategies of the commercial sphere, in recent years, …

Reparations For Slavery: A Productive Strategy?, Makau Wa Mutua

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Published as Chapter 1 in Time for Reparations: A Global Perspective, Jacqueline Bhabha, Margareta Matache & Caroline Elkins, eds.

Subnational Constitutionalism In The United States: Powerful States In A Powerful Federation, James A. Gardner

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Published as Chapter 19 in Routledge Handbook of Subnational Constitutions and Constitutionalism, Patricia Popelier, Nicholas Aroney & Giacomo Delledonne, eds.

The United States has an extremely robust network of subnational constitutions. It is one of the few federations in the world in which subnational entities are understood to be fully competent polities with virtually complete constituent powers of self-organization and self-authorization. The authority to adopt a subnational constitution is consequently understood to be an incident of subnational sovereignty, a concept in turn derived from a conception of the basic federal order itself as highly decentralized.

Judith Shklar’S Critique Of Legalism, Seyla Benhabib, Paul Linden-Retek

Contributions to Books

Published as Chapter 16 in The Cambridge Companion to the Rule of Law, Jens Meierhenrich & Martin Loughlin, eds.

Feminism’S Transformation Of Legal Education And Unfinished Agenda, Jamie Abrams

Contributions to Books

Feminism has had a broad influence in legal education. Feminist critiques have challenged the substance of legal rules, the methods of law teaching, and the culture of legal education. Following decades of advocacy, feminist pedagogical reforms have generated new fields, new courses, new laws, new leaders, and new feminist spaces. There are many reasons to celebrate the accomplishments of our feminist pioneers and champions. Yet, COVID-19 has also exposed all the vulnerabilities and tenuousness of feminist gains too. Critical work remains for faculty, administrators, and students to carry the work forward with a vigilant purpose and determination.

The Way To Barbara Armstrong, First Tenure-Track Law Professor In An Accredited Us Law School, Susan Carle

Contributions to Books

This is the third volume in a trilogy on gender issues in legal occupations. An overview of Women in the World ’ s Legal Professions (Schultz and Shaw 2003) was followed by Gender and Judging (Schultz and Shaw 2013), finally to be completed by this study on women teachers of law. All three books have been published by Hart Publishing, to whom we are grateful for their unceasing support over so many years. Our thanks also go to the International Institute for the Sociology of Law for facilitating the inclusion of all three volumes in their O ñ ati Socio-Legal …

Commentary On Emerson V. Magendantz, Lucinda M. Finley

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Published as Chapter 13 of Feminist Judgments: Rewritten Tort Opinions, Martha Chamallas & Lucinda M. Finley, eds. (Cambridge University Press 2020). Emerson v. Magendantz assesses how to measure harm when people get pregnant after a negligently performed sterilization, or have disabled children after genetic counseling or prenatal testing misdiagnosed the risk. The court permitted parents to recover child-rearing costs only for disabled children, reasoning that the emotional benefits of a healthy child invariably outweigh its economic burdens. Critiquing this reasoning as a double insult to the disabled and to the importance of reproductive autonomy, the feminist rewritten opinion uses the …

Protecting And Fostering Online Platform Competition: The Role Of Antitrust Law, Jonathan Baker

Contributions to Books

This essay provides a perspective on the role of antitrust law in protecting and fostering competition in the digital economy, with particular attention to online platforms. It highlights the danger of anti-competitive exclusionary conduct by dominant online platforms and describes ways that antitrust law can challenge and deter such conduct. The essay also identifies a number of difficulties that U.S. courts and enforcers face in challenging harmful exclusionary conduct by dominant platforms, and discusses some ways regulation can supplement antitrust law in fostering competition.

Centralization Of The Academic Law Library: Is It Right For Your Institution?, Elizabeth G. Adelman

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Published in Academic Law Libraries Within the Changing Landscape of Legal Education: A Primer for Deans and Provosts, Michelle M. Wu, Scott B. Pagel & Joan S. Howland, eds.

Presidential Selection: Historical, Institutional, And Democratic Perspectives, James A. Gardner

Contributions to Books

Published as Chapter 1 in The Best Candidate: Presidential Nomination in Polarized Times, Eugene Mazo and Michael Dimino, eds.

It has been nearly two centuries since an American presidential election has evoked a crisis of confidence like that following the election of 2016. Not since the election of Andrew Jackson in 1828 has there been such a public display of anxiety concerning the methods by which we choose our chief executive. As in the contest of 1828 pitting the Democrat Jackson against his Federalist opponent John Quincy Adams, the presidential nominating process of 2016 produced a contest between a celebrity …

The Tokyo Tribunal’S Legal Origins And Contributions To International Jurisprudence As Illustrated By Its Treatment Of Sexual Violence, Diane Orentlicher

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No abstract provided.

The Overlapping Web Of Data, Territoriality And Sovereignty, Jennifer Daskal

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Provides a framework to better understand Global Legal Pluralism and the current international state of law.

Equips practitioners, theorists, and students with deeper insights and analytical tools to describe the conflict among legal and quasi-legal systems.

Analyzes global legal pluralism in light of legal theory, constitutionalism, conflict of laws, international law, commercial transactions, and as it affects indigenous polities, religious orders, and citizenship.

Pandemia Y Derecho Internacional, Claudio Grossman

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La pandemia actual ha cobrado un tremendo precio a la humanidad. A la fecha, más de un millón de personas han fallecido, varios millones han sido infectadas y no se vislumbra un final para las trágicas consecuencias que la COVID-19 ha infligido a las personas. La pandemia ha afectado a todas las naciones, debido a las interconexiones en numerosos campos, incluido el comercio, las inversiones y el turismo, que, como resultado de la globalización, han multiplicado los contactos entre las personas. No obstante, la pandemia ha demostrado también que las poblaciones más vulnerables son las que más sufren. Los países …

The Changing Landscape Of International Law, Claudio Grossman

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No abstract provided.

Governance Interactions In Sustainable Supply Chain Management, Errol Meidinger

Contributions to Books

Published as Chapter 3 in Transnational Business Governance Interactions: Enhancing Regulatory Capacity, Ratcheting up Standards, and Empowering Marginalized Actors, Stepan Wood, Rebecca Schmidt, Errol Meidinger,Burkard Eberlein, and Kenneth W. Abbot, eds.

Supply chains are a major site of transnational business governance, and yet their dynamics and effectiveness are usually more assumed than interrogated in regulatory governance discourse. The very term ‘chain’ implies a more determinist and simplistic understanding of supply relationships than is empirically supportable. Supply chains in practice are complex, dynamic, and highly variable networks. Based on peer-group presentations by more than sixty supply chain professionals, this chapter analyzes …

Introduction, Ezra Rosser

Contributions to Books

This is the introduction to Holes in the Safety Net: Federalism and Poverty (Ezra Rosser ed., Cambridge University Press, 2019). The table of contents for the book, with links to the other chapters, can be found below: Introduction (this document) Ezra Rosser Part I: Welfare and Federalism Ch. 1 Federalism, Entitlement, and Punishment across the US Social Welfare State Wendy Bach Ch. 2 Laboratories of Suffering: Toward Democratic Welfare Governance Monica Bell, Andrea Taverna, Dhruv Aggarwal, and Isra Syed Ch. 3 The Difference in Being Poor in Red States versus Blue States Michele Gilman Part II: States, Federalism, and Antipoverty …

Tpp And Environmental Regulation, Errol Meidinger

Contributions to Books

Published as Chapter 8 in Megaregulation Contested: Global Economic Ordering After TPP, Benedict Kingsbury, David M. Malone, Paul Mertenskötter, Richard B. Stewart, Thomas Streinz & Atsushi Sunami, eds.

This article examines the environment-related provisions of the Trans-Pacific Partnership Agreement (TPP) to assess how and how much they contribute to a larger megaregulatory program for the Asia-Pacific region. The TPP calls for ‘high levels’ of environmental protection and effective enforcement; incorporates duties from several multilateral environmental agreements; adds new provisions addressing several important environmental problems; mandates administrative best practices; promotes corporate social responsibility and the use of voluntary certification systems; and …

Predictive Policing Theory, Andrew Guthrie Ferguson

Contributions to Books

Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.

This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular …

Judge Douglas H. Ginsburg And Antitrust Law's Rule(S) Of Reason, Jonathan Baker, Andrew Gavil

Contributions to Books

This essay, written for a volume in honor of Judge Douglas H. Ginsburg, explores the evolution of the rule of reason and its development into a common structured, burden shifting approach guiding judicial decisions under Sections 1 and 2 of the Sherman Act and under Section 7 of the Clayton Act. It highlights the influential role that Judge Ginsburg and the Court of Appeals for the D.C. Circuit, on which he served, played in that evolution.

Public Policy Limitations On Trademark Subject Matter: A U.S. Perspective, Christine Farley

Contributions to Books

This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.

Libraries' Shifting Roles And Responsibilities In The Networked Age, Michael W. Carroll

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My goal in this chapter is to advance the argument that access denied to resources in digital form is a more serious, and more solvable, problem than one might glean from the literature. Digital networks make access possible to a degree that would have been unimaginable in the analog era. What was once a mix of technological and economic constraints on access is now reduced to legal, rather than technological, constraints. The library community should more explicitly commit itself to the goal of ubiquitous access to digital content.

The role of the library in public life should be to minimize …

Sez Who? Critical Legal History Without A Privileged Position, John Henry Schlegel

Contributions to Books

Published as Chapter 30 in Oxford Handbook of Historical Legal Research, Markus D. Dubber & Christopher Tomlins, eds.

Scholars active in the Critical Legal Studies movement of the 1980s regularly attacked the scholarship of liberal legalist scholars by using a variety of then contemporary epistemological theories that argued for the impossibility of any observer attaining a neutral position from which to observe social activities. Somewhat surprisingly, liberal legalist scholars seldom turned this criticism back at the work of CLS scholars who themselves never criticized their own work as they did that of other scholars. The examination of several pieces of …

The Embedded Liberalism Compromise In The Making Of The Gatt And Uruguay Round Agreements, Meredith Kolsky Lewis

Contributions to Books

Published as Chapter 2 in The Future of International Economic Integration: The Embedded Liberalism Compromise Revisited, Gillian Moon & Lisa Toohey, eds.