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Catholic Social Teaching And Global Migration: Bridging The Paradox Of Universal Human Rights And Territorial Self-Determination, Vincent D. Rougeau Dec 2008

Catholic Social Teaching And Global Migration: Bridging The Paradox Of Universal Human Rights And Territorial Self-Determination, Vincent D. Rougeau

Journal Articles

In this essay, I will consider how law, religion, and democratic pluralism revolve around a particular issue: global migration. I use the term global migration to encompass a number of related issues that are often collapsed under the term immigration. In nations that have constructed their identities around waves of settlers or migrants -- places like the United States, Canada, Australia, and New Zealand -- immigration involves the formal reception of foreigners into the host country as potential new citizens. This is just one part of the migration of peoples around the globe. Migration also encompasses emigration, asylum, economic migration,and …


Introducing Classcrits: Rejecting Class-Blindness, A Critical Legal Analysis Of Economic Inequity, Athena D. Mutua Dec 2008

Introducing Classcrits: Rejecting Class-Blindness, A Critical Legal Analysis Of Economic Inequity, Athena D. Mutua

Journal Articles

In 2007, two workshops at the University at Buffalo launched a project bringing together legal scholars interested in exploring the relationship between law and economic inequality. This article provides an overview of the workshops’ key understandings and discussions. The essay suggests that these understandings, informed by critical legal scholarship, constituted a set of shared assumptions among the participants and informed the groups’ rejection of class blindness, a society-wide blindness to the existence and use of economic power. Discussing some of the functional similarities of gender, race and class blindness, the article argues that feminist and critical race scholars’ critiques of …


Human Rights And Powerlessness: Pathologies Of Choice And Substance, Makau Mutua Dec 2008

Human Rights And Powerlessness: Pathologies Of Choice And Substance, Makau Mutua

Journal Articles

The human rights corpus is a bundle of pathologies of choice and substance. But these pathologies are ideologically driven and inhere in the human rights movement because of the political choices and biases that are part of the cultural universe of human rights. In particular, the corpus is captive to thin notions of human rights that tend not to challenge deeply embedded social and economic assumptions and systems. The historical narrative of the human rights movement closely parallels the hegemonic rise of the West and hence the movement’s imprisonment in an intellectual project that casts the human being in the …


Power Of Attorney, Christine Corcos Nov 2008

Power Of Attorney, Christine Corcos

Journal Articles

No doubt exists that the drama/farce Ally McBeal, which ran on the Fox Television Network from 1997 to 2002, was a phenomenal success, at least during its middle years (1998-1999). It sparked numerous fan websites in several countries including one devoted to "fan fiction" (a genre in which devotees of a television series or film try their hands at writing scripts), various product spinoffs, a series spinoff (Ally, a thirty minute version that featured only vignettes, no legal drama) and even a Time magazine article that seriously considered whether Ally represents "the end of feminism." Years after the show went …


The Social Life Of Regulation In Taipei City Hall: The Role Of Legality In The Administrative Bureaucracy, Anya Bernstein Oct 2008

The Social Life Of Regulation In Taipei City Hall: The Role Of Legality In The Administrative Bureaucracy, Anya Bernstein

Journal Articles

This article explores the role of legality in conceptions of state and society among bureaucrats in the Taipei, Taiwan city government. When administrators confront the global arena, the existence of law emblematizes modernity and the ability to participate in the international system. In interactions among administrators, law is laden with impossible ideals and fraught with assumptions of hypocrisy. In dealings with people outside the government, legality often signals the breakdown of other, more valuable social norms. Far from legitimating administrative action, legality itself is legitimated by reference to the same values as other social action: it is held up to …


In Search Of Sub-National Constitutionalism, James A. Gardner Sep 2008

In Search Of Sub-National Constitutionalism, James A. Gardner

Journal Articles

Two recent trends, one favoring federalism as a form of governmental organization and the other favoring written constitutions, have lately combined to produce an impressive proliferation of subnational constitutions. Documents that can fairly be described as constitutions now govern the affairs of subnational units - states, provinces, cantons, Länder - in federal states on every continent. What remains unclear, however, is whether the proliferation of subnational constitutions indicates a corresponding spread of the practice of subnationalism constitutionalism - whether, that is, the appearance of subnational constitutions around the globe evinces a spreading ideological commitment to a strong role for subnational …


A Localist Reading Of Local Immigration Regulations, Rick Su Sep 2008

A Localist Reading Of Local Immigration Regulations, Rick Su

Journal Articles

The conventional account of immigration-related activity at the local level often assumes that the "local" is simply a new battleground in the national immigration debates. This article questions that presumption. Foregrounding the legal rules that define local governments and channels local action, this article argues that the local immigration "crisis" is much less a consequence of federal immigration policy than normally assumed. Rather, it can also be understood as a familiar byproduct of localism: the legal and cultural assumptions that shape how we structure and organize local communities, provide and allocate local services, and define the legal relationship of local, …


Duress, Demanding Heroism And Proportionality, Luis E. Chiesa May 2008

Duress, Demanding Heroism And Proportionality, Luis E. Chiesa

Journal Articles

No abstract provided.


The Culpability Of Felony Murder, Guyora Binder May 2008

The Culpability Of Felony Murder, Guyora Binder

Journal Articles

Legal scholars are almost unanimous in condemning felony murder as a morally indefensible form of strict liability. This Article provides the long-missing principled defense of the felony murder doctrine. It argues that felony murder liability is deserved for killing negligently by means of a violent or apparently dangerous felony involving an additional malign purpose independent of physical injury to the victim killed. This claim follows from the simple idea that the guilt incurred in attacking or endangering others depends on one’s reasons for doing so. The article develops this idea into an expressive theory of culpability that assesses blame for …


Book Review, Angela Mae Kupenda Jan 2008

Book Review, Angela Mae Kupenda

Journal Articles

YOUR BLUES AIN’T LIKE MINE is an excellently written, fictionalized account of the lives of several people set in the fifties as a rural Mississippi community reacts to impending school racial desegregation and the killing of a fifteen year old black boy who had the misfortune of speaking French in the direction of a white woman. I’ve used this book to facilitate discussion on issues of race, gender, the law, class, and politics in several of my law school classes such as Race and the Law, Gender and the Law, and Civil Rights.


Remand And Appellate Review When A District Court Declines To Exercise Supplemental Jurisdiction Under 28 U.S.C. § 1367(C): Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii Jan 2008

Remand And Appellate Review When A District Court Declines To Exercise Supplemental Jurisdiction Under 28 U.S.C. § 1367(C): Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah Challener, John B. Howell Iii

Journal Articles

Under 28 U.S.C. § 1447(c) and (d), as well as Supreme Court precedent, remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction. Until recently, all appellate courts that had addressed the issue had concluded that a district court’s discretionary decision to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) and remand the supplemental claims does not constitute a remand for lack of subject matter jurisdiction and therefore is reviewable on appeal.


A Process Theory Of Natural Law And The Rule Of Law In China, Mark C. Modak-Truran Jan 2008

A Process Theory Of Natural Law And The Rule Of Law In China, Mark C. Modak-Truran

Journal Articles

This Article analyzes China's efforts to implement the rule of law and proposes a constructive, post-modern normative theory of law based on the Process Philosophy of Alfred North Whitehead and the Radical Empiricism of William James. This "process theory of natural law" provides a novel theory of natural law that eliminates the perceived illegitimacy arising from legal indeterminacy and closes the ontological gap between legal theory and practice. Process natural law also mediates many of the cultural differences between the East and the West through the telos of beauty (unity-in-diversity), which entails maximizing both an Eastern aesthetic sense of order …


Book Review, Mark C. Modak-Truran Jan 2008

Book Review, Mark C. Modak-Truran

Journal Articles

This book brings together two previously separate aspects of Michael J. Perry’s thoughtful and pioneering scholarship dealing with the proper relation of morality (especially religious morality) to law and human rights and the role of courts in protecting human rights.


Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda Jan 2008

Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda

Journal Articles

Although there are surmountable legal barriers to racial integration in education, fuller integration is possible. But first, whites must see how they benefit from diversity, and, second, whites must take simple steps toward integration that may, in turn, reveal to whites their desire to become more fully integrated. These two steps may help remove the limiting point to true integration.


The Social Contract And Authorship: Allocating Entitlements In The Copyright System., Alina Ng Jan 2008

The Social Contract And Authorship: Allocating Entitlements In The Copyright System., Alina Ng

Journal Articles

No abstract provided.


Just Back From The Human Rights Council, Makau Mutua Jan 2008

Just Back From The Human Rights Council, Makau Mutua

Journal Articles

The piece critically looks at the transition from the UN Commission on Human Rights to the UN Human Rights Council in 2006 and questions whether the change is one of substance or form. It argues that the same paralysis that dogged the Commission will continue to afflict the Council because power politics and regional blocs - fueled by the global asymmetries of power - will not go away. The piece also contends that the charge by the West that the Commission was utterly compromised by the Third World was without merit because it was the one forum where developing could …


Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis Jan 2008

Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis

Journal Articles

No abstract provided.


Restoring The Ada And Beyond: Disability In The 21st Century, Robert L. Burgdorf Jan 2008

Restoring The Ada And Beyond: Disability In The 21st Century, Robert L. Burgdorf

Journal Articles

Perhaps it was imprudent for me to agree, in response to the request of the symposium organizers, to address the future of disability law. Nobel Prize-winning physicist Neils Bohr supposedly once said that "[p]rediction is very difficult, especially about the future."' Columnist and author Jim Bishop wrote, "The future is an opaque mirror. Anyone who tries to look into it sees nothing but the dim outlines of an old and worried face." 2 Prognosticating is a very tricky and uncertain undertaking. I cannot pretend to have any particular gift for crystal ball gazing in disability matters. When I joined the …


The Revolution In Law Through Arbitration, Thomas E. Carbonneau Jan 2008

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Journal Articles

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …


Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau Jan 2008

Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau

Journal Articles

This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …


New Orleans, Katrina And Kelo: American Cities In The Post-Kelo Era, John Costonis Jan 2008

New Orleans, Katrina And Kelo: American Cities In The Post-Kelo Era, John Costonis

Journal Articles

No abstract provided.


Rhapsody In Blue: An Ode To The Bluebook, Michael Coenen Jan 2008

Rhapsody In Blue: An Ode To The Bluebook, Michael Coenen

Journal Articles

No abstract provided.


Of Judicial Freedom And Judicial Constraint: The Voice Of Louisiana's Judge Albert Tate, Jr., Paul R. Baier Jan 2008

Of Judicial Freedom And Judicial Constraint: The Voice Of Louisiana's Judge Albert Tate, Jr., Paul R. Baier

Journal Articles

No abstract provided.


Policing The Compensation Of Victims Of Catastrophes: Combining Solidarity And Self-Responsibility, Olivier Moreteau Jan 2008

Policing The Compensation Of Victims Of Catastrophes: Combining Solidarity And Self-Responsibility, Olivier Moreteau

Journal Articles

No abstract provided.


Insider’S Guide To Dol Audits (Book Review), Lisa Goodman Jan 2008

Insider’S Guide To Dol Audits (Book Review), Lisa Goodman

Journal Articles

No abstract provided.


Notes On The Multiple Facets Of Immigration Federalism, Rick Su Jan 2008

Notes On The Multiple Facets Of Immigration Federalism, Rick Su

Journal Articles

This symposium essay takes as its starting point the contestable position that some degree of immigration federalism is both constitutionally permissible and politically desirable. It suggests, however, that liberating the issue of immigration from the shadows of federal exclusivity does not necessarily tell us much about what a conceptual framework or legal jurisprudence of immigration federalism should or will actually be like. This is not solely a function of the difficulties inherent in incorporating principles of federalism into what is usually understood to be an exclusive federal field of immigration. Rather, it is also a consequence of the rifts and …


Section 524(G) Without Compromise: Voting Rights And The Asbestos Bankruptcy Paradox, S. Todd Brown Jan 2008

Section 524(G) Without Compromise: Voting Rights And The Asbestos Bankruptcy Paradox, S. Todd Brown

Journal Articles

Section 524(g) of the Bankruptcy Code was adopted to protect unknown future asbestos personal injury victims' rights and prospects for financial recovery. To serve these goals and satisfy the demands of due process, Section 524(g) provides two basic forms of virtual representation for future victims - requiring the appointment of an independent legal representative and aligning the interests of future victims with current claimants (75% of whom must approve any plan that invokes Section 524(g)). In recent years, however, the 75% super-majority vote requirement has been transformed into a veto power wielded by a small group of law firms, who …


Introduction, Amy Coney Barrett Jan 2008

Introduction, Amy Coney Barrett

Journal Articles

This essay is as an introduction to a symposium on stare decisis and nonjudicial actors. It frames the questions explored in the symposium by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and historically, they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought …


Human Dignity And Judicial Interpretation Of Human Rights: A Reply, Paolo G. Carozza Jan 2008

Human Dignity And Judicial Interpretation Of Human Rights: A Reply, Paolo G. Carozza

Journal Articles

This essay is a reply to Christopher McCrudden's Human Dignity and Judicial Interpretation of Human Rights, 19 EJIL 655 (2008). It argues that McCrudden's study of the uses of the idea of human dignity in constitutional human rights adjudication confirms the thesis that there is at present an emerging global ius commune of human rights. Although McCrudden understates the existence and value of transnational agreement about human dignity and instead emphasizes divergences in the judicial uses of human dignity, in fact there is good reason to regard the core recognition of the status and principle of human dignity as more …


Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward Jan 2008

Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward

Journal Articles

This Article considers the constitutionality and propriety of recent appropriations riders passed by the House of Representatives in response to controversial federal court rulings. The riders prohibit the use of any federal funds for the enforcement of court orders issued in specified cases. These enforcement-blocking provisions raise significant separation-of-powers concerns as between Congress and both coordinate branches of the federal government.

The Article begins by looking at the controversial First Amendment rulings that triggered the enforcement-blocking riders, and the Congressional debates over the proper way to respond to the rulings. The riders are not merely symbolic protests, but could have …