Law Commons^™

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …

Challenging Political Boundaries In Post-Conflict States, Angela M. Banks

Faculty Publications

No abstract provided.

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Will Marriage Promotion Work?, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Naked And Covered In Monte Carlo: A Reappraisal Of Option Taxation, Eric D. Chason

Faculty Publications

The market for equity options and related derivatives is staggering, covering trillions of dollars worth of assets. As a result, the taxation of these instruments is inherently important. Moreover, the importance is made even more acute by the use of options in creating more complex transactions and in avoiding taxes. Consider an equity call option, which entitles, but does not obligate, its holder to buy stock at a set price at a set time in the future. Option theory gives us a way to break the option down into more fundamental units. For example, an equity call option over 10,000 …

International Courts And Tribunals, Lee M. Caplan, Nancy Amoury Combs, Carl Magnus Nesser, Ucheora O. Onwuamaegbu, Cesare P.R. Romano

Faculty Publications

This article summarizes significant developments in 2006 concerning international courts and tribunals, particularly events relating to the International Court of Justice, the Permanent Court of Arbitration, the Iran-U.S. Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and arbitral tribunals constituted under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. This article covers the period of activity from December 1, 2005, to November 30, 2006.

Can We Make The Constitution More Democratic?, Ilya Somin, Neal Devins

Faculty Publications

No abstract provided.

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Faculty Publications

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity …

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

A Constitutional Conundrum Of Second Amendment Commas, William W. Van Alstyne

Faculty Publications

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.

Politique Partisane Et Indépendence Judiciare, Neal Devins

Faculty Publications

No abstract provided.

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Administrative Judiciary's Independence Myth, James E. Moliterno

Faculty Publications

No abstract provided.

A Windfall For The Magnates: The Development Of Woodland Ownership In Denmark, Eric Kades

Faculty Publications

No abstract provided.

Against Mix-And-Match Lawmaking, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

How Congress Paved The Way For The Rehnquist Court's Federalism Revival: Lessons From The Federal Partial Birth Abortion Ban, Neal Devins

Faculty Publications

No abstract provided.

Active Sovereignty, Timothy Zick

Faculty Publications

No abstract provided.

Family Structure, Children, And Law, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Attorney-Client Privilege In The Public Sector: A Survey Of Government Attorneys, Nancy Leong

Faculty Publications

No abstract provided.

Jurisdictionality And Bowles V. Russell, Scott Dodson

Faculty Publications

On June 14, 2007, the Supreme Court decided Bowles v. Russell, a case watched primarily by procedure geeks but one which may have enormous impact for courts and litigators. It addressed a ubiquitous but confusing question of jurisdictional characterization: when is a limitation “jurisdictional,” and when is it not? Litigators encounter these questions all the time in statutory coverage issues, in time limitations, and in a host of other preconditions. Whether a particular limitation is jurisdictional or not can be an important question, for jurisdictional limitations are not subject to waiver or equitable exceptions, may be raised at any time, …

Dark Ages Of Human Rights?, Linda A. Malone

Faculty Publications

No abstract provided.

Beyond Disability Civil Rights, Michael Ashley Stein, Penelope J.S. Stein

Faculty Publications

No abstract provided.

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Participatory Constitution Making In Post-Conflict States, Angela M. Banks

Faculty Publications

No abstract provided.

Creative Sanctions For Online Investment Fraud, Jayne W. Barnard

Faculty Publications

No abstract provided.

Constitutional Avoidance And The Roberts Court, Neal Devins

Faculty Publications

No abstract provided.

A Quick Overview Of The United Nations Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Trademark/Copyright Divide, Laura A. Heymann

Faculty Publications

No abstract provided.

Pleading Standards After Bell Atlantic Corp. V. Twombly, Scott Dodson

Faculty Publications

On May 21, 2007, the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly and gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart: that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” This Essay explains how Bell Atlantic did so and discusses some of its implications for pleading claims in the future.