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Articles 61 - 84 of 84
Full-Text Articles in Law
Citizens United And The Threat To The Regulatory State, Tamara R. Piety
Citizens United And The Threat To The Regulatory State, Tamara R. Piety
Tamara R. Piety
This brief essay, intended for publication in electronic form, discuses the connection between Citizens United v. FEC and the commercial speech doctrine arguing that Citizens United is likely to serve as ammunition to expand protection for commercial speech.
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
Michael W. Lewis
The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …
Public Defender Elections And Public Control Of Criminal Justice, Ronald F. Wright
Public Defender Elections And Public Control Of Criminal Justice, Ronald F. Wright
Ronald F. Wright
Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal courtroom, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all the states are elected at the local level. The public defender, however, is typically not an elected official, even though the defender is a public employee with important budgetary and policymaking authority over criminal justice. Why the difference?
As it happens, we have some actual experience to draw upon in answering these …
Crime And Punishment: Teen Sexting In Context, Julia Halloran Mclaughlin
Crime And Punishment: Teen Sexting In Context, Julia Halloran Mclaughlin
Julia Halloran McLaughlin
Do You Swear To Tell The Truth, The Whole Truth, And Nothing But The Truth Against Your Child?, Hillary B. Farber
Do You Swear To Tell The Truth, The Whole Truth, And Nothing But The Truth Against Your Child?, Hillary B. Farber
Hillary B. Farber
Currently in the United States forty-five states and the federal system do not recognize an evidentiary parent-child privilege. The United States Supreme Court has never granted certiorari in a case involving recognition of a parent-child privilege. For many, it is a revelation to learn that the government can compel testimony about communications and observations between parents and their children. A rights-based argument in favor of a parent-child privilege has not been articulated before in legal scholarship. This paper singles out one specific context, the prosecution of juveniles, and argues that such a privilege is essential in order to ensure children …
Fire With Fire: Heterodox Law & Economics, Karl T. Muth
Fire With Fire: Heterodox Law & Economics, Karl T. Muth
Karl T Muth
This Article first examines, from a historical perspective, the evolution of the law-and-economics movement. It then critically examines the application of economic principles the legal analysis, paying particular attention to how the political process has shaped the law-and-economics scholarship. Finally, it concludes that the principles of law-and-economics, while fundamentally sound, are often misapplied, too narrowly interpreted, and aggregated into a single viewpoint that is politically convenient rather than academically honest.
Memory And Punishment, Orlando Carter Snead
Memory And Punishment, Orlando Carter Snead
O. Carter Snead
This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …
The Public-Private Dichotomy In Morality And Law, Larry D. Barnett
The Public-Private Dichotomy In Morality And Law, Larry D. Barnett
Larry D Barnett
The article advances the thesis that the doctrines and concepts of law are attributable to the properties of society and to the forces molding these properties. The thesis, after being illustrated with the federal Investment Advisers Act, is assessed quantitatively using data from the General Social Survey. The Survey interviews a national sample of adults in U.S. households, and in 1991, it ascertained whether interviewees classified morality as a private matter or as a public issue. The social values of interviewees on the public-private nature of morality were the dependent variable in a study that assumed (i) an activity is …
Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer
Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer
Nancy J. Knauer
The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …
The Inconvenience Of A “Constitution [That] Follows The Flag ... But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet
The Inconvenience Of A “Constitution [That] Follows The Flag ... But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet
Pedro A. Malavet
Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes —as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico— is still the dominant interpretation of …
Affirmative Action & The Obligations Of American Citizenship, Robert Justin Lipkin
Affirmative Action & The Obligations Of American Citizenship, Robert Justin Lipkin
Robert Justin Lipkin
No abstract provided.
To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary B. Farber
To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary B. Farber
Hillary B. Farber
Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …
Putting The World Back Together? Recovering Faithful Citizenship In A Postmodern Age, Harry G. Hutchison
Putting The World Back Together? Recovering Faithful Citizenship In A Postmodern Age, Harry G. Hutchison
Harry G. Hutchison
Archbishop Chaput’s book, Render Unto Caesar, signifies the continuation of an impressive and persistent debate about what is means to be Catholic and how Catholics should live out the teachings of the Church in political life in our postmodern society. Render Unto Caesar provides evidence that the America’s identity and future are endangered by trends reifying radical human autonomy and choice. New threats surface in the form of legislation and judicial interpretations permitting choices that were once considered criminal to be accepted. This trend has been accompanied, if not facilitated, by U.S. Supreme Court decisions that have contributed greatly to …
Debt As Venture Capital, Darian M. Ibrahim
Debt As Venture Capital, Darian M. Ibrahim
Darian M Ibrahim
Venture debt, or loans to rapid-growth start-ups, is a puzzle. How are start-ups with no track records, positive cash flows, tangible collateral, or personal guarantees from entrepreneurs able to attract billions of dollars in loans each year? And why do start-ups take on debt rather than rely exclusively on equity investments from angel investors and venture capitalists (VCs), as well-known capital structure theories from corporate finance would seem to predict in this context? Using hand-collected interview data and theoretical contributions from finance, economics, and law, this Article solves the puzzle of venture debt by revealing that a start-up’s VC backing …
Regulation By Markets And Higher Education, Benedict Sheehy
Regulation By Markets And Higher Education, Benedict Sheehy
Benedict Sheehy
Markets have a number of uses. One increasingly important use by politicians is as a means of regulating the supply and distribution of goods and services formerly supplied and distributed by governments on non-market bases. The use of markets as a regulator of higher education is not novel. However, the increased reliance on markets as a regulator of higher education is an on-going experiment with certain predictable failures. This article explores the uses of the market in the supply and distribution of higher education and weighs it against the stated policy objectives, with particular attention to the application proposed in …
Florence Kelley And The Battle Against Laissez-Faire Constitutionalism, Felice J. Batlan
Florence Kelley And The Battle Against Laissez-Faire Constitutionalism, Felice J. Batlan
Felice J Batlan
The usual story of the demise of laissez-faire constitutionalism in the 1930’s features heroes such as Louis Brandeis, Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label "legal orthodoxy." In this essay, I seek to demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and State constitutions. Looking at who was drafting and lobbying for path breaking …
Property And Transitional Justice, Bernadette Atuahene
Property And Transitional Justice, Bernadette Atuahene
Bernadette Atuahene
Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Property Rights & The Demands Of Transformation, Bernadette Atuahene
Bernadette Atuahene
The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …
Blues Lives: Promise And Perils Of Musical Copyright, Olufunmilayo B. Arewa
Blues Lives: Promise And Perils Of Musical Copyright, Olufunmilayo B. Arewa
Olufunmilayo B. Arewa
The application of copyright law to music has long been fraught with complexities and continuing problems. Problems in the application of copyright to blues music have come to pass, in part, as a result of the peculiar ways in which copyright has been applied to nonvisual technologies of musical creation and reproduction. In the nineteenth century, music creation and reproduction reflected a live performance tradition, within a commercial context in which sheet music was the dominant form of fixed musical reproduction. Although copyright has been an inexact fit for music generally, in a world in which sheet music was the …
Law School & The Web Of Group Affiliation: Socializing, Socialization, & Social Network Site Use Among Law Students, Eric M. Fink
Law School & The Web Of Group Affiliation: Socializing, Socialization, & Social Network Site Use Among Law Students, Eric M. Fink
Eric M Fink
Online social network sites (“SNS”) have emerged as a significant socio-technical phenomenon in the past several years. Scholars from various disciplines have examined these sites to develop a better understanding of their social significance and implications from a variety of perspectives. Within the burgeoning field of SNS studies, one strand of work focuses on the place of SNSs in students’ educational experiences and the potential pedagogical applications of SNSs. However, the SNS phenomenon generally, and its educational/pedagogical significance in particular, have received scant attention from legal scholars. This article examines the place of SNSs within the contemporary law school experience, …
Paradigm Shifts In Products Liability And Negligence, Alani Golanski
Paradigm Shifts In Products Liability And Negligence, Alani Golanski
Alani Golanski
The Unrecognized Dominance Of Law In Morality: The Case Of Promises, Ronit Donyets-Kedar
The Unrecognized Dominance Of Law In Morality: The Case Of Promises, Ronit Donyets-Kedar
Ronit Donyets-Kedar
Abstract The commonplace view is that moral thinking has significantly influenced legal theory, but law has had very little theoretical effect on morality. In this article, I attempt to show this is not so. Taking the inverse course in tracing the interrelations between law and morality – investigating morality from the perspective of law rather than examining law from the perspective of morality– I show, through the case of promises, that legal theory has greatly affected dominant strands of moral thought. By bringing to the fore the robust legal elements that guide some of the prevailing moral theories, my aim …
Youtube, Ugc, And Digital Music: Competing Business And Cultural Models In The Internet Age, Olufunmilayo B. Arewa
Youtube, Ugc, And Digital Music: Competing Business And Cultural Models In The Internet Age, Olufunmilayo B. Arewa
Olufunmilayo B. Arewa
YouTube, Facebook, MySpace, and other websites that contain user-generated content (UGC) have become key reference points in broader debates about copyright in the digital era. UGC websites and other digital era players have created much destruction of cultural industry business models. The rise of Web 2.0 thus poses significant challenges to pre-digital era cultural industry business models, particularly because UGC may contain copyright protected content. The challenges of YouTube and other websites containing UGC and video content follow experiences in the music arena. The music industry was the first of the cultural industries to con- front the digital era, and …
Seeing The State: Transparency As Metaphor, Mark Fenster