Law Commons^™

The Ideology Of Human Rights, Makau Wa Mutua

Makau Mutua

This piece argues that although human rights is an ideology although it presents itself as non-ideological, non-partisan, and universal. It contends that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the construction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies. Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and the universality of human …

Slowly Returning The "Special Needs" Doctrine To Its Roots, Steven R. Probst

Steven Probst

No abstract provided.

Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.

Brannon P. Denning

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …

A Vast Image Out Of Spiritus Mundi: The Existential Crisis Of Law Schools (Book Review), Jeremiah A. Ho

Jeremiah A. Ho

Review of Teaching Law: Justice, Politics, and the Demands of Professionalism. By Robin L. West. Cambridge and New York: Cambridge University Press. 2014. Pp. 246. Cloth, $90; paper, $32.99.

Dominant Search Engines: An Essential Cultural & Political Facility, Frank Pasquale

Frank A. Pasquale

When American lawyers talk about "essential facilities," they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance. In this chapter, I sketch a new concept of "essential cultural and political facility," which can help policymakers recognize and address situations where a bottleneck has become …

'Leveling The Playing Field' With Contract Principles, Stephen A. Gerst

Stephen A Gerst

No abstract provided.

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

A Positive Political Theory Of Rules And Standards, Tonja Jacobi, Frank Cross, Emerson Tiller

Tonja Jacobi

How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will be likely to use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form …

The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez

Armando G. Hernandez

A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …

In Defence Of The Doctrine Of Forum Non Conveniens, Dan Jerker B. Svantesson

Dan Svantesson

This article examines the doctrine of forum non conveniens as applied in Hong Kong, Australia, the US and Sweden, and considers the criticism that has been raised against the doctrine. The author argues that some of this criticism is valid, some of it is valid only in relation to some countries’ application of the doctrine, and some of the criticism is unfounded. The author concludes that the test applied in Hong Kong and most other common law jurisdictions - the clearly or distinctly more appropriate forum test - is the better option. The author goes on to make a number …

Oy Vey! The Bernstein Exception: Rethinking The Doctrine In The Wake Of Constitutional Abuses, Corporate Malfeasance And The “War On Terror”, Breana Frankel

Breana Frankel

Abstract OY VEY! THE BERNSTEIN EXCEPTION: RETHINKING THE DOCTRINE IN THE WAKE OF CONSTITUTIONAL ABUSES, CORPORATE MALFEASANCE AND THE “WAR ON TERROR” Breana Frankel, Assistant Professor, Chapman University School of Law The “Bernstein doctrine” is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in act of state cases when it determines that adjudication would not harm U.S.-foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. However, in the more than 50 years since its inception, the Bernstein doctrine has …

The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning

Brannon P. Denning

This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning--the usual focus of constitutional theory--and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in …

A Question Of Fairness: Should Noerr-Pennington Immunity Extend To Conduct In International Commerical Arbitration?, Randy D. Gordon

Randy D. Gordon