Law Commons^™

The False Promise Of One Person, One Vote, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This article challenges the theoretical foundations of the right to cast an equally weighted vote. That right, most elegantly captured in the phrase one person, one vote, was at the heart of the early reapportionment cases and has since become one of the hallmarks of democracy. One of the principal reasons for the success of the one person, one vote standard is that it appears to be a neutral or objective way of parsing out political power. Drawing on recent work in philosophy and economics on the nature of interpersonal utility comparisons, I demonstrate the normative character of the standard. …

Judicial Supremacy And Its Discontents, Dale Carpenter

Faculty Journal Articles and Book Chapters

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution …

Redefining The Fiduciary Duties Of Corporate Directors In Accordance With The Team Production Model Of Corporate Governance, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This article considers the "team production model" (TPM) of corporate governance set forth and elaborated upon by Margaret Blair and Lynn Stout. The author initially addresses how the locus of fiduciary duties should be respecified to be consistent with the TPM framework of corporate governance, should that paradigm be determined to be a descriptively more accurate model of public corporations than is the conventional agency mode, and then reviews the relatively complex calculations that would have to be carried out to determine how the performance of a TPM-style corporate board of directors measures up against these respecified fiduciary duties. Finally, …

Sex, Marriage, Medicine, And Law: 'What Hope Of Harmony?', Thomas Wm. Mayo

Faculty Journal Articles and Book Chapters

This essay offers a critique of the Kansas Supreme Court's decision in In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), and similar cases that hold that for purposes of the opposite-sex marriage rule, an individual's sex is determined at birth, is genetically fixed, and cannot be changed through surgery or hormone therapy. The result for transgendered individuals is a legal regime that is hostile to medical care that brings external sex characteristics into line with sexual identity. The result for society is a legal rule that is at odds with scientific opinion. Finally, the result for the opposite-sex …

Manipulating International Criminal Procedure: The Decision Of The Icty Office Of The Independent Prosecutor Not To Investigate Nato Bombing In The Former Yugoslavia, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

No abstract provided.

Does The Texas Homosexual Conduct Law Violate The Fourteenth Amendment, Dale Carpenter

Faculty Journal Articles and Book Chapters

No abstract provided.

Lawyer Liability After Sarbanes-Oxley - Has The Landscape Changed, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

No abstract provided.

Jury Sentencing As Democratic Practice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to …

The Culture Of Compliance: The Final Triumph Of Form Over Substance In Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article is divided into three Parts. Part I briefly describes the continuing problem of sexual harassment and summarizes case law relating to employer liability for sexual harassment. It then describes the incentives the law creates for employers, victims, and harassers, and explains how each group responds to these incentives. Part II explores whether the preventative measures spurred by the legal regime serve Title VII's goal of deterring harassment and preventing harm. It first identifies individual and organizational factors that cause or correlate with the level of harassment in order to develop theoretical connections between employer preventative measures and the …

Feminist Law Journals And The Rankings Conundrum, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

The Culture Of Compliance: The Final Triumph Of Form Over Substance In Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

The Supreme Court's 2003 Employment Rulings: Surprising Gains For Workers And Women, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The notoriously conservative Supreme Court returned some surprising victories for employees, women, and families during the October, 2003 term. Its most notable employment decision was in Nevada Department of Human Resources v. Hibbs, a case exploring whether the Family and Medical Leave Act, a federal statute mandating unpaid leave for employees who need it because of illness or care giving responsibilities, protects state government employees.

A second important case, Desert Palace, Inc. v. Costa, resolved a long-brewing split among federal appellate courts about the proof requirements in so-called “mixed motive” discrimination cases—those in which an adverse employment action …

We Do Not Hold The Earth In Trust, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Beyond The Bright Line: A Contemporary Right-To-Counsel Doctrine, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

The current right-to-counsel doctrine was developed in the 1970's. It created a bright-line rule still in effect today. The right to counsel attaches only at "critical stages" of a criminal prosecution. Under this critical stage doctrine, the right to counsel only attaches after the initiation of formal adversary proceedings and only applies to confrontations between the accused and the prosecution or law enforcement. In the years following the Supreme Court's development of the critical stage doctrine, national trends of mandatory sentencing and sentencing guidelines revolutionized criminal procedure and dramatically altered the roles of the system's key players.

Now, defense counsel's …

A Moving Violation - Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.