Law Commons^™

Can A Tribunal’S Former Counsel Appear Before The Tribunal? A Comment On Certain Container Chassis, Andrew Martin

Articles, Book Chapters, & Popular Press

Lawyer mobility has been recognized as an important but not determinative consideration in legal ethics, particularly when it comes to conflicts of interest. Mobility poses particular issues for counsel to a tribunal. Those counsel may well at some point leave that position and pursue other opportunities. Prospective opportunities may sometimes involve appearing as counsel for a party before the same tribunal – especially where the tribunal operates in a highly specialized area of law. Can a lawyer appear before a tribunal if they were previously counsel to that tribunal? This discrete issue, though it rarely arises in the case law, …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public …

Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …

Public Good Through Charter Schools?, Philip Hackney

Articles

Should nonprofit charter schools be considered “charitable” under § 501(c)(3) of the Internal Revenue Code and be entitled to the benefits that go with that designation (income tax exemption, charitable contribution deduction, etc.)? Current tax law treats them as such; the question is whether there is a good rationale for this treatment. In addition to efficiency and equity, I consider political justice as a value in evaluating tax policy. By political justice, I mean a democratic system that prioritizes the opportunity for more people to have a voice in collective decisions (political voice equality or PVE). Thus, a tax policy …

A Theory Of Federalization Doctrine, Gerald S. Dickinson

Articles

The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …

The "Right To City" In The Era Of Crowdsourcing, Alexandra Flynn

All Faculty Publications

This article explores the meaning and context of crowdsourcing at the municipal scale. In order to legitimately govern, local governments seek feedback and engagement from actors and bodies beyond the state. At the same time, crowdsourcing efforts are increasingly being adopted by entities – public and private – to digitally transform local services and processes. But how do we know what the “the right to the city” (RTTC) means when it comes to meaningful and participatory decision-making? And how do we know if participatory efforts called crowdsourcing—a practice articulated in a 2006 Wired article in the context of the …

A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson

Articles

United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …

Takings Federalization, Gerald S. Dickinson

Articles

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa

Articles by Maurer Faculty

Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.

Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets …

How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.

Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a contractual …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

Scholarly Works

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

Evidence Based Policy Research For Contributing To Sustainable Development, Harini Santhanam

Interdisciplinary Collection

In the modern era, people, infrastructure and governance are three pillars of development, and the emphasis is on building the capacity through innovation through disciplinary knowledge and analytical skills. The research objective of the Department of Public Policy is to develop competencies which empower researchers to challenge the real-world complexities of policies and their making in an appropriate and acceptable way in the society. Within the domain of targeted policy research, the current focus is on evidence-based policy research across diverse disciplines. Within a multi-disciplinary and trans-disciplinary involving the sciences, technology, social sciences, economics and governance, policy-based research pave the …

Constitutional Traditions As Boundaries In Standardizing Administrative Rulemaking Through Trade Agreements, Han-Wei Liu, Ching-Fu Lin

Research Collection Yong Pung How School Of Law

Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.

Negligence And Culpability: Reflections On Alexander And Ferzan, Mitchell N. Berman

All Faculty Scholarship

Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to …

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

The Relevance Of Purpose In Constitutional Equal Protection Challenges To Executive Action, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

The Normalization Of The Exception: The Nexus Of Emergency Powers And Criminal Justice In Colonial And Postcolonial Jamaica, Jermaine Ar Young

FIU Electronic Theses and Dissertations

Since the antiquity, the study of emergency powers has tended to revolve around the dichotomy between norm and exception, suggesting that governments follow established rules of law in ordinary circumstances and resort to extraordinary measures only in times of genuine emergency. My dissertation challenges this dichotomy by analyzing Jamaica’s colonial and post-colonial experiences with emergency powers in order to provide a different story about the norm-exception binary. In fact, Jamaica’s case shows there are no neat partitions between both spheres. Instead, what we see unfolding is the technical application of emergency provisions as legality, rule by law, rooted in continual …

24th Annual Open Government Summit 2022, Roger Williams University School Of Law, Rhode Island Office Of The Attorney General

School of Law Conferences, Lectures & Events

No abstract provided.

Babe In The Woods: Why The Federal Rules Of Evidence Should Adopt A New Hearsay Exception To Protect Children, Marlee Rowe

Arkansas Law Notes

Child abuse is a public health problem affecting millions of children across the United States. Many states have adopted hearsay exceptions to prevent child victims of abuse from being forced to testify in front of their abusers. However, not all states provide these protections, and the exceptions vary widely from state to state. Because many states draft their rules of evidence to accord with the Federal Rules of Evidence, Congress should enact a hearsay exception on the federal level to promote uniformity and to ensure child victims of abuse are protected from further traumatization, regardless of what state they live …

Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman

All Faculty Scholarship

A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism leveled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and principles is …

Written Testimony Of Philip Hackney For The Hearing On Laws And Enforcement Governing The Political Activities Of Tax-Exempt Entities (U.S. Senate Finance Committee Subcommittee On Taxation And Irs Oversight, May 4, 2022), Philip Hackney

Testimony

Are tax laws and IRS enforcement up to the task of overseeing the tax issues associated with the political activities of tax-exempt organizations? Though the tax laws governing the tax-exempt realm are wanting, our overall legal structure is not bad. It is justifiable at least. Where we fall down as a nation in this space is in the enforcement. We do not allocate enough resources to this arena, and we do not institutionally offer the support necessary to enforce these laws. These failures do not favor one party over the other but favor those interests in the country with the …

Digital Cluster Markets, Herbert J. Hovenkamp

All Faculty Scholarship

This paper considers the role of “cluster” markets in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them.

One foundational requirement of markets in antitrust cases is that they consist of products that are very close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations.

Nevertheless, clustering noncompeting products into a single market for purposes of antitrust analysis can be valuable, provided that its limitations are understood. Clustering contributes to market power when (1) many customers …

Assessing Automated Administration, Cary Coglianese, Alicia Lai

All Faculty Scholarship

To fulfill their responsibilities, governments rely on administrators and employees who, simply because they are human, are prone to individual and group decision-making errors. These errors have at times produced both major tragedies and minor inefficiencies. One potential strategy for overcoming cognitive limitations and group fallibilities is to invest in artificial intelligence (AI) tools that allow for the automation of governmental tasks, thereby reducing reliance on human decision-making. Yet as much as AI tools show promise for improving public administration, automation itself can fail or can generate controversy. Public administrators face the question of when exactly they should use automation. …

The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack

Articles

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

State Attorneys General And The Public Nuisance Doctrine: Lessons To Be Derived From State Ex Rel. Attorney General Of Oklahoma V. Johnson & Johnson, John S. Baker Jr, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

What History Can Tell Us About The Future Of Insurance And Litigation After Covid-19, Kenneth S. Abraham, Tom Baker

All Faculty Scholarship

This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and …

Moving Toward Personalized Law, Cary Coglianese

All Faculty Scholarship

Rules operate as a tool of governance by making generalizations, thereby cutting down on government officials’ need to make individual determinations. But because they are generalizations, rules can result in inefficient or perverse outcomes due to their over- and under-inclusiveness. With the aid of advances in machine-learning algorithms, however, it is becoming increasingly possible to imagine governments shifting away from a predominant reliance on general rules and instead moving toward increased reliance on precise individual determinations—or on “personalized law,” to use the term Omri Ben-Shahar and Ariel Porat use in the title of their 2021 book. Among the various technological, …

Analysing The Constitutionality Of Executive Action Under Articles 14 And 15 In Singapore – Theoretical And Doctrinal Perspectives, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Articles 14 and 15 of the Singapore Constitution enshrine the rights to free speech, religious freedom, and other related rights in Singapore. These provisions also set out the circumstances under which these rights may be restricted. Notably, however, these provisions are directed at legislativerestrictions. The question is how they are applicable to executive action. This paper suggests that there are two possible means by which one can assess the constitutionality of executive action under Articles 14 and 15 in Singapore – the jurisdictional and substantive approaches – and demonstrates that evidence of both approaches can be found in Singapore law. …