Law Commons^™

Penn Central After 35 Years: A Three-Part Balancing Test Or A One-Strike Rule?, R. S. Radford

R. S. Radford

Penn Central Transportation Co. v. City of New York has been called the “polestar” of regulatory taking jurisprudence. Yet after 35 years, there is still no consensus on whether Penn Central sets forth a three-part balancing test, or a "one strike, you're out" checklist. This article presents an empirical analysis of how Penn Central is actually applied in the federal courts, finding distinct differences in the application of the test across jurisdictions.

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Judicial Review And Deliberative Politics. A Tension In Need Of Analysis., Donald E. Bello Hutt

Donald E. Bello Hutt

Champions of judicial review of legislation have defended this institution even before John Marshall decided Marbury v. Madison in 1803. Nevertheless, those defenses have to face with several difficulties, both practical and abstract. The aim of this paper is to analyze those difficulties and the context in which the defenses have been successful. We shall discuss the origins of judicial review in the work of James Iredell, Alexander Hamilton and John Marshall in order to introduce not only the first defenses of judicial review, but to fix the political context and dominant constitutional philosophy at their time: departmentalism and popular …

Which Interests Should Tort Protect?, Jean M. Thomas

Jean M Thomas

The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests …

Efficiency Themes In Tort Law From Antiquity, M Stuart Madden

M Stuart Madden

Hellenic philosophers assessed the goals of society as: (1) the protection of persons and property from wrongful harm; (2) protection of the individual’s means of survival and prosperity; (3) discouragement of self-aggrandizement to the detriment of others; and (4) elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western World and beyond. The common law, in turn, has nurtured many of the same ends. From …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

Property And Republicanism In The Northwest Ordinance, Matthew J. Festa

Matthew J. Festa

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes

Warren S Grimes

The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of efficiency of judicial proceedings and fairness to nonresidents than the immunity from service of process doctrine. The article proposes that the immunity from service of …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

"Losers"

We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained …

Evaluating Contracts For Customized Litigation By The Norms Underlying Civil Procedure, Colter Paulson

Colter Paulson

Recent scholarship on the potential for contractual modifications of litigation procedure focuses on contractual theories of enforcement, with constraints supplied by public policy. But this approach ignores the fact that such contracts purport to bind a third-party, the court, that did not agree to change its procedures. Nor can contractual theories of enforcement fully account for the societal and institutional interests in existing procedures. These problems are resolved, however, when contractual procedures are seen primarily as procedures, rather than as contracts, and are evaluated in light of the norms underlying civil procedure.

These norms are found both in the explicit …

The Rebirth Of Dependence: Offering An Alternative Understanding Of Financial Crisis, Ciara Hackett

Ciara Hackett

Dependency theory situated within the broader field of development studies draws on Marxist inspired theories of development and tends to oppose the neo-liberalism interpretation of the markets that is prevalent today. In considering the global system as a mixture of dependent relationships, it goes beyond inter-dependence, suggesting that such relationships are unequal.

The financial crisis of 2007 – 2010 has provided academics and commentators with a unique environment to debate, discuss and analyse our current understanding of the global financial system, the relationships within and the role of entities such as the multi-national corporation (MNC). This article takes dependency theory …

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) …

Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts J.D., Ph.D.

Tina F Botts J.D., Ph.D.

Nancy Leong’s thesis, in “Judicial Erasure of Mixed-Race Discrimination,” is that antidiscrimination law should make a switch from defining race “categorically” to defining it in terms of the perception of the would-be discriminator so as to better accommodate claims of multiracial discrimination and so as to better achieve what Leong sees as the goals of antidiscrimination law, i.e., the promotion of racial understanding, and the elimination of racism and racial discrimination. But, while Leong’s goals are admirable, the method she proposes for achieving these goals will not succeed. Antidiscrimination law cannot operate to promote racial understanding, or to eliminate racism …

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …

Fragmenting The Judiciary: Potential Ideological Effects Of Shifting Implementation Of Supreme Court Doctrine From Federal Courts To State Courts, Ryan Walters

Ryan Walters

More than ever, the Supreme Court of the United States can rely on an army of life-tenured judges on lower federal courts to implement the doctrines it develops on statutory and constitutional issues. Those judges are shielded from public opinion on controversial rulings, and recent research has shown that the Supreme Court itself is more likely to be affected by elite opinion than that of the public.

Despite checks and balances being a centerpiece of the constitutional order, the increasing size and jurisdictional scope of the federal judiciary, combined with its lack of political accountability, has led to a increase …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Aaron Christopher Bryant

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite – as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell’s was that such abuse of language – which in his novel he labeled “Newspeak” -- would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical …

Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan

Richard O. Morgan

The process used by the Intelligence Community to collection information concedes a degree of truth-finding efficacy in order to serve other social values and policy considerations. As a result, the use of information derived from the “intelligence cycle” as evidence in judicial proceedings creates conceptual and procedural challenges. For example, the need to quickly and widely disseminate intelligence information across vast geographic spaces results in the Intelligence Community relying heavily on written communication. As a consequence, degrees of uncertainty or reliability may be distilled into written caveats within intelligence reports, with an attendant loss of subtlety. In contrast, judicial trials …

Lincoln's International Law -- Redefining American Exceptionalism, Antonio F. Perez

Antonio F Perez

This paper analyzes Lincoln’s understanding of international law, shows how that understanding flows from the premises from which Lincoln rejected the ruling pre-Civil War understanding of the role of international law in the U.S. Constitution, explains how those premises in turn are grounded in Lincoln’s ethical principles, and draws some tentative conclusions as to the inferences that can be drawn today from Lincoln’s conception of American exceptionalism. First, the essential features of Lincolnian exceptionalism become clear only in the context of a detailed description of the previous ruling conception of American exceptionalism. American exceptionalism, under this theory, focused on institutional …

Law: An Information Technology, John O. Mcginnis

john o. mcginnis

Law: An Information Technology

This article offers an historical, theoretical and practical perspective of law as an information technology. Law fundamentally concerns information—providing information to the community about the content of legal norms and, at least in its common law form, eliciting information about the world from the disputes before a court. After a brief survey of law’s history as an information technology, the article applies information theory to understand recent developments in an important aspect of that technology—legal search. Information theory focuses on the signal to noise ratio of communication. The key to progress in creating a better computerized …

Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie M. Banta

Natalie M Banta

In Substantive Due Process in Exile: The Supreme Court’s Original Interpretation of the Due Process Clause of the Fourteenth Amendment, the author proposes an interpretation of the Supreme Court’s substantive due process jurisprudence, focusing on an often overlooked period between 1873 and 1897. Recently, a flurry of scholarship has addressed the origins of substantive due process. Scholars have focused on how natural law principles were transported to the colonies from the common law of England and how the concept of substantive due process developed before the ratification of the Fourteenth Amendment. Scholars then jump to the discussion of substantive due …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

Is An Inviolable Constitution A Suicide Pact? Historical Perspectives On An Overriding Executive Power To Protect The Salus Populi, Ryan P. Alford

Ryan P Alford

The Article posits that every constitutional order within the Western legal tradition that influenced the Framers recognized the necessity of control over executive emergency powers. It responds to the work of scholars such as Michael Stokes Paulsen, John Yoo, Eric Posner, and Adrian Vermuele, who have used historical arguments to justify strong claims about unbridled presidentialism in national security matters.

The Article demonstrates that it has always been recognized that one of the fundamental purposes of a constitution (written or unwritten) is to provide a framework for the exercise of executive power. It details how, throughout history, legal opinion has …