Law Commons^™

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

Global Constitutional Lawmaking, Sungjoon Cho

Sungjoon Cho

Sin Taxes: When The State Becomes The Sinner, Andrew J. Haile

Andrew J. Haile

SIN TAXES: WHEN THE STATE BECOMES THE SINNER

ANDREW J. HAILE

To fill budget gaps, several state legislatures have proposed increasing existing taxes on tobacco and alcohol products. In addition, some states (as well as the federal government) are considering the enactment of new “sin taxes,” for example taxes on high-sugar drinks and internet pornography. This Article examines many of the traditional arguments for and against sin taxes. It then focuses on an argument that has previously received little attention – the conflict of interest created by a state’s dependence on sin tax revenues. When states become dependent on sin …

Case Studies In Abandoned Empiricism And The Lack Of Peer Review, Rob M. Frieden

Rob Frieden

In far too many instances, the Federal Communications Commission (“FCC”) engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion …

The Rights Question, Bruce A. Antkowiak

Bruce A Antkowiak

The problem this article addresses will be well known to anyone who has taught or taken a course in Constitutional Law in the last three decades. When the subject turns to the related issues of selective incorporation, substantive due process and the proper interpretation of the Ninth Amendment, teachers of Constitutional Law cringe at the prospect of trying to explain sensibly what the Supreme Court itself has come to acknowledge is a most baffling conundrum: what are “rights,” where do they come from, are there more to be identified in the Constitutional universe, who is equipped to find them, and …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

August 15, 2009: Higher Law At Netroots Nation, Bruce Ledewitz

Hallowed Secularism

Blog post, “Higher Law at Netroots Nation“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 12, 2009: Healthcare Trouble In Pennsylvania An Extension Of Clinging To Guns And Bible, Bruce Ledewitz

Hallowed Secularism

Blog post, “Healthcare Trouble in Pennsylvania an Extension of Clinging to Guns and Bible“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

The New Sanctuary Movement: When Moral Mission Means Breaking The Law, And The Consequences For Churches And Illegal Immigrants, Kara L. Wild

Kara L. Wild

Are the churches involved in the New Sanctuary Movement -- a movement that hides illegal immigrants in churches to prevent them from being deported -- acting legally? If not, is there a way that they could pursue their goals in a legal manner? The author explores the movement's goal, to win public sympathy and eventual legality for the nation's illegal immigrant population by using methods that were popular during the successful 1980s Sanctuary Movement. The author examines the differences between the 1980s Movement and the current one, the likelihood of success for the New Sanctuary Movement's legal arguments, and the …

August 8, 2009: End Of Life Counseling, Bruce Ledewitz

Hallowed Secularism

Blog post, “End of Life Counseling“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Federal Demand Local Choice: Safeguarding The Notion Of Federalism In Education Law And Policy, Kamina A. Pinder

Kamina A Pinder

As the ESEA undergoes its next transformation under a new presidential administration, this article explores the appropriate federal and state roles in promoting and enforcing laws related to academic achievement, and the appropriate judicial role in interpreting them. Part I of this article provides an overview of how the modern federal role in education law and policy was shaped through politics and litigation. Part II explores the drastic changes that No Child Left Behind brought to education federalism through the lens of cooperation, coercion (enforcement), and competition. It then analyzes the appropriate role of the executive branch in enforcing educational …

Killing Capital Punishment In New Jersey: The First State In Modern History To Repeal Its Death Penalty Statute, Robert Martin

Robert J. Martin

This article examines how opponents of the death penalty were successful in lobbying and eventually achieving statutory repeal of New Jersey’s death penalty statute in December 2007. The primary goal of the article is to offer inspiration and guidance for similar efforts in the thirty-five states that still authorize capital punishment. In reviewing lessons learned from New Jersey, the article demonstrates that abolition proved both difficult and doubtful. Led by a small group of organizers and sympathetic legislators, the advocates of abolition faced multiple challenges. The article focuses special attention on their key strategic decisions: pursuit of both legislation and …

Infrastructure Privatization Contracts And Their Effects On Governance, Ellen Dannin

Ellen Dannin

For all but those who have an ideological commitment to privatization, the issue driving privatization is how to fund public infrastructure. Thus, arguments for privatizing infrastructure are (1) to provide money so cash-strapped governments can fix crumbling infrastructure and (2) to shift future financial risk to the private contractor, as well as, of course, the financial rewards.

The reality, though, is far different. Provisions commonly found in infrastructure privatization contracts actually make the public the insurer of private contractors’ return on investment. Indeed, were it not for the lengthy provisions that protect contractors from diminution of their expected returns, the …

The Long Road To Self Determination, Sarah Chilim Ihn

Sarah Chilim Ihn

East Los Angeles is widely considered as the heart of Southern California’s strong and vibrant Mexican American community – yet, it is also an unincorporated area whose only general purpose government is provided by Los Angeles County, the most populous county in the nation. Through the lens of East Los Angeles’ quest for cityhood, this paper explores and critiques the limited governance options that exist for low-income unincorporated communities.

July 30, 2009: Jesus Is Back In The Legislature, Thank God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Jesus is Back in the Legislature, Thank God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 27, 2009: Food Inc., Bruce Ledewitz

Hallowed Secularism

Blog post, “Food Inc.“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 25, 2009: Common Ground On Everything But Abortion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Common Ground on Everything But Abortion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin Lozano

Benjamin J Lozano

In wartime states of emergency, the Supreme Court has historically held that a constitutional entitlement to habeas review is neither predicated on the length of detention nor the timeliness of due process, but rather is objective, concrete, and atemporal. The question of wartime habeas corpus has therefore always been an ontological question, exclusively determined by the corresponding categories of subject and space. However, this paper argues that a surreptitious shift in methodology buried inside the ostensible precedent of Boumediene v. Bush should not be overlooked, for the ruling signals the inaugural moment whereby the length and indefinite duration (i.e. the …