Law Commons^™

Bond And The Vienna Rules, Roger P. Alford

Journal Articles

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.

Patriation And Patrimony: The Path To The Charter, John Finnis

Journal Articles

This annotated Coxford Lecture is the first account dedicated to tracing the part played in the 1980-82 patriation of the Canadian Constitution by the British House of Commons, particularly by its Select Committee on Foreign Affairs. This committee, for which author was the adviser, investigated the propriety of the UK Parliament’s acceding to a request for amendment of the British North America Act 1867 (as amended) if the amendment were opposed by a substantial number of Provinces and it would affect their powers. Against the firm opposition of the Canadian government (secretly being assisted by the British government), the Committee …

The Place Of Force In General Jurisprudence, Jeffrey A. Pojanowski

Journal Articles

This essay reviews Frederick Schauer’s book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer’s criticism on that score is sound. His analysis of the role coercion can play in accomplishing law’s moral tasks is also welcome and important. Nevertheless, Schauer’s jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of …

Three Things: A Tribute To Judge Morris Sheppard Arnold, Nicole Stelle Garnett

Journal Articles

On February 20, 2015, the Arkansas Bar Association hosted a tribute to Judge Morris Sheppard Arnold (8th Cir., retired). I had the privilege of clerking for Judge Arnold in 1995-96 and the great honor of being asked to speak about the Judge at the event. Greenbag graciously agreed to publish my remarks.

The Anglo-Latin Divide And The Future Of The Inter-American System Of Human Rights, Paolo G. Carozza

Journal Articles

A former President of the Inter-American Commission on Human Rights, Paolo Carozza draws on his personal experience to identify and propose solutions for a key flaw in the Inter-American Human Rights System: the division between English-language member states and states with Latin-based languages. Terming this division "The Anglo-Latin Divide," Carozza traces the division not only to linguistic difference, but also to differences in legal traditions. He explains how the differences between Anglo tradition of common law and the Latin tradition of civil law manifest in both substantive and procedural divides within the Inter-American Human Rights system, including in sensitive areas …

Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski

Journal Articles

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …

21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, And Wmds, Mary Ellen O'Connell

Journal Articles

The world faces tough arms control challenges from preventing the development and use of weapons of mass destruction to regulating the new weapons of the computer revolution. This article considers what works in arms control. Using military force in violation of international law to destroy nuclear facilities, to stop weapons shipments, or to punish the use of prohibited weapons typically fails. Diplomacy paired with lawful counter-measures has the superior track record. Reviving the art of diplomacy and re-committing to authentic international law will pay dividends in peace and security.

The Just War Tradition And International Law Against War: The Myth Of Discordant Doctrines, Mary O'Connell

Journal Articles

The international law regulating resort to armed force, still known by the Latin phrase, the jus ad bellum, forms a principal substantive subfield of international law, along with human rights law, international environmental law, and international economic law. Among theologians, philosophers, and political scientists, just war theory is a major topic of study. Nevertheless, only a minority of scholars and practitioners know both jus ad bellum and just war theory well. Lack of knowledge has led to the erroneous view that the two areas are in conflict. This article responds to this misapprehension, explaining the deep compatibility of international law …

Game Of Drones, Mary O'Connell

Journal Articles

Reviewing three 2015 treatises on Drone War

A Theory of the Drone. By Grègoire Chamayou. Translated by Janet Lloyd. New York, London: The New Press, 2015. Pp. 292. Index. $26.95.

International Law and Drone Strikes in Pakistan: The Legal and Socio-political Aspects. By Sikander Ahmed Shah. London, New York: Routledge, 2015. Pp. viii, 247. Index. $145.

Sudden Justice: America's Secret Drone Wars. By Chris Woods. Oxford, New York: Oxford University Press, 2015. Pp. xvi, 386. Index. $27.95.

Glorious Precedents: When Gay Marriage Was Radical, Michael Boucai

Journal Articles

In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. Drawing on extensive archival research and on interviews with key players in each case, it shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits …

Preservation Is A Flawed Mitigation Strategy, Jessica Owley

Journal Articles

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it …

Rights As Wrongs: Legality And Sacrality In Thailand, David M. Engel

Journal Articles

Interviews with injury victims in northern Thailand (Lanna) conveyed a pervasive sense of injustice in their daily lives but a notable absence of the language of rights. Despite the proliferation of rights-based discourses, organisations, and institutions in Thai society, interviewees tended to disfavour the pursuit of rights because they believed that resort to the legal system would subvert Lanna traditional practices and would add to the bad karma that caused their suffering in the first place. This article traces fundamental contradictions in northern Thai concepts of justice arising from the imposition of “modern” systems of law and religion by the …

The Social Origins Of The Personality Torts, Samantha Barbas

Journal Articles

No abstract provided.

Adapting Conservation Easements To Climate Change, Adena R. Rissman, Jessica Owley, M. Rebecca Shaw, Barton H. Thompson Jr.

Journal Articles

Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. Although only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent terms on private lands. CEs often have multiple, potentially conflicting purposes that protect against …

Rules Against Rulification, Michael Coenen

Journal Articles

The Supreme Court often confronts the choice between bright-line rules and open-ended standards — a point well understood by commentators and the Court itself. Far less understood is a related choice that arises once the Court has opted for a standard over a rule: May lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several recent cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.” Rules against …

Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis

Journal Articles

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or nothing) as …

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …

Reaching Backward And Stretching Forward: Teaching For Transfer In Law School Clinics, Shaun Archer, James Parry Eyster, James J. Kelly Jr., Tonya Kowalski, Colleen F. Shanahan

Journal Articles

In thinking about education, teachers may spend more time considering what to teach than how to teach. Unfortunately, traditional teaching techniques have limited effectiveness in their ability to help students retain and apply the knowledge either in later classes or in their professional work. What, then, is the value of our teaching efforts if students are unable to transfer the ideas and skills they have learned to later situations?

Teaching for transfer is important to the authors of this article, four clinical professors and one psychologist. The purpose of this article is to provide an introduction to some of the …

Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …

Hydraulic Fracturing: If Fractures Cross Property Lines Is There An Actionable Subsurface Trespass?, Keith B. Hall

Journal Articles

The law recognizes trespass liability for subsurface intrusions, at least in some circumstances. Further, courts sometimes have stated that ownership of land extends to the earth's center. But such statements are dicta. Few courts have carefully considered the maximum extent of subsurface ownership or subsurface trespass liability. Courts in two jurisdictions have recently addressed whether a person incurs liability when he causes hydraulic fracturing fluid to intrude into the subsurface of a neighbor's land, but the courts reached opposite conclusions, with each suggesting that public policy supported its position. Neither adequately examined the legal issues. Careful consideration of trespass concepts …

The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey

Journal Articles

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It …

Seeing It Coming Since 1945: State Bans And Regulations Of Crafty Sciences Speech And Activity, Christine Corcos

Journal Articles

No abstract provided.

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …

Improving Patent Quality With Applicant Incentives, Stephen Yelderman

Journal Articles

This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive set …

A False Sense Of Security: Due Process Failures In Removal Proceedings, Darlene Goring

Journal Articles

The article explores the reasons for the failure of due process rights afforded by aliens facing criminal prosecution for unauthorized return to the U.S. after prior removal proceedings. Topics discussed include Federal enforcement of the Immigration and Nationality Act, laws governing criminal prosecution and incarceration for previously removed aliens, and disclosure of the availability of judicial review to aliens facing removal from the U.S.

Wilderness Exceptions, John Copeland Nagle

Journal Articles

This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a …

“All Good Things Flow . . . ”: Rule Of Law, Public Goods, And The Divided American Metropolis, James J. Kelly Jr.

Journal Articles

This essay is a review of and a response to Urban Decay, Austerity, and Rule of Law, an article written by Brent White, Simone Sepe, and Saura Masconale. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. White, Sepe, and Masconale offer their theory as a “make ‘gov’ not war” alternative to the Broken Windows Theory, which underlies ordermaintenance policing strategies. In the final section of the piece, the authors …

Interpreting Secretary Perkins, Barry Cushman

Journal Articles

This essay is my contribution to an exchange with Professor Daniel R. Ernst of Georgetown University Law Center concerning the timing of a visit by Chief Justice Hughes and his wife to the Pennsylvania summer home of Justice Owen Roberts. In the 1950s, former Secretary of Labor Frances Perkins recounted in the oral history interview she gave to Columbia University that Mrs. Roberts had reported to her that Hughes and Roberts had held extended, private conversations during that visit. It has been argued by some scholars that the visit took place during the summer of 1936, shortly after the Court …

Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara Fick

Journal Articles

This article addresses the concept of corporate social responsibility (hereinafter CSR) as it relates to labor rights. It considers the following issues: is the CSR model, as evidenced by the adoption of corporate codes of conduct, effective in protecting labor rights?; and is this model the best way to protect labor rights? These issues are examined from two perspectives: practical and philosophical. Lastly, some alternative enforcement mechanisms are considered and their respective advantages and disadvantages for purposes of ensuring labor rights are discussed.