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Articles 1 - 30 of 38
Full-Text Articles in Law
Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski
Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski
Faculty Scholarship
Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …
Last Wave: The Rise Of The Contingent School District, The , Aaron J. Saiger
Last Wave: The Rise Of The Contingent School District, The , Aaron J. Saiger
Faculty Scholarship
Spurred in part by state court cases holding that states bear a constitutional duty to educate all children adequately, and making creative use of the arguments of school choice advocates, the states and other policy actors have in recent years recast the problem of deficient schooling as one of government structure rather than one of individual rights. This reorientation has contributed to a dramatic erosion of the traditional role of the local school district as the leading administrative, policymaking, and legal unit of American school government. A new, polyarchic distribution of power has arisen in place of district primacy, bearing …
Representing Children In Families, Bruce A. Green, Annette R. Appell
Representing Children In Families, Bruce A. Green, Annette R. Appell
Faculty Scholarship
No abstract provided.
Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear
Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear
Faculty Scholarship
Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …
Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan
Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan
Faculty Scholarship
This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …
Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen
Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen
Faculty Scholarship
Since the mid-1990s, the "religious lawyering movement" has expanded dramatically, receiving greater attention within the academy and the bar. As the movement enters what we term its "second wave" of development, this essay begins with a look back to its "first wave" of path-breaking scholarship and its gradual shift toward more institutionalized structures and programs. It argues that the predominant characteristic of first-wave religious lawyering scholarship was to claim a space within the professional conversation for lawyers to bring religious values to bear on their work. The essay then predicts that in the second wave religious lawyering conversations and scholarship …
Lifting Our Veil Of Ignorance: Culture, Constitutionalism, And Women's Human Rights In Post-September 11 America , Catherine Powell
Lifting Our Veil Of Ignorance: Culture, Constitutionalism, And Women's Human Rights In Post-September 11 America , Catherine Powell
Faculty Scholarship
This Article challenges the culture clash view of human rights law, which posits a clash between Western countries' presumed respect for women's human rights and non-Western countries' presumed rejection of these rights on cultural and religious grounds. Since the September 11 terrorist attacks, this view has taken on new significance, in light of the perceived civilizational divide between the Western and Muslim worlds. The Article calls into question this view, by examining cultural stereotypes of women used to oppose U.S. ratification of the Convention on the Elimination of All Forms of Discrimination Against Women. My reading, therefore, is at odds …
Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein
Faculty Scholarship
This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …
Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee
Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee
Faculty Scholarship
This article considers judicial regulation of excessive punishments through the Eighth Amendment.
Daedalean Tinkering, Sean J. Griffith
Daedalean Tinkering, Sean J. Griffith
Faculty Scholarship
This Review describes David Skeel's account of corporate scandal and evaluates his policy recommendations in his recent book, Icarus in the Boardroom. It argues that although the book provides a compelling history of corporate scandal, its focus on federal responses to scandal--from the enactment of the Interstate Commerce Act to the Sarbanes-Oxley Act--misses an important part of the story. As corporate law scholars have long pointed out, corporations exist within a network of constraints, based in part on law and in part on markets, norms, and other non-legal sanctions. Because it omits any sustained discussion of the reaction of these …
Crossing The Himalayas: Exculpatory Clauses In Global Transport, Joseph Sweeney
Crossing The Himalayas: Exculpatory Clauses In Global Transport, Joseph Sweeney
Faculty Scholarship
No abstract provided.
Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley
Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley
Faculty Scholarship
Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of …
Judicial Federalism In The Ecj's Berlusconi Case: Toward More Credible Corporate Governance And Financial Reporting Recent Development, Martin Gelter, Mathias M. Siems
Judicial Federalism In The Ecj's Berlusconi Case: Toward More Credible Corporate Governance And Financial Reporting Recent Development, Martin Gelter, Mathias M. Siems
Faculty Scholarship
In recent years, the general public in many countries has become increasingly aware of issues concerning business accounting and financial reporting. Americans hardly need to be reminded of the Enron debacle, where members of the company's senior management engaged in fraudulent off-balance sheet transactions to disguise the true state of the company's financial condition, a scheme that auditors failed to uncover until the company's implosion. This and other major corporate governance cases involving questionable or fraudulent accounting practices led to the Sarbanes-Oxley Act of 2002. This law was an unprecedented Congressional intervention into corporate governance, an arena that had previously …
Structure Of Regulatory Competition In European Corporate Law, The , Martin Gelter
Structure Of Regulatory Competition In European Corporate Law, The , Martin Gelter
Faculty Scholarship
In its opinions in the cases Centros, Uberseering and Inspire Art, the ECJ has begun to open European corporate law for regulaton of competition, as it has been discussed in the US for several ldecades. This article analyses the stuictual conditions of competition on the supply and demand sides of the market for corporate law, and the impact of supranational influence. In doing so, it identifies several factors that have received little attention in the incipient European debate. The supply-side analysis shows that a European Delaware is implausible because of the interdependence of competitive advantages and the incentives to compete. …
Law, Lawyers, And Labor: The United Farm Workers' Legal Strategy In The 1960s And 1970s And The Role Of Law In Union Organizing Today , Jennifer Gordon
Law, Lawyers, And Labor: The United Farm Workers' Legal Strategy In The 1960s And 1970s And The Role Of Law In Union Organizing Today , Jennifer Gordon
Faculty Scholarship
What does law offer labor? It depends. The specifics of the law in question are critical, as are the make-up and funding of the agency that is charged with implementing it and the economic strength, political clout, and strategic creativity of the unions and employers that it governs. Today's discussions of the NLRA from the union perspective are tinged with desperation about what law does for and to organizing-a desperation that is born of labor's sense that it has lost too many important battles before the NLRB and the courts over the interpretation of the NLRA. In despair, however, workers …
Ingando Solidarity Camps: Reconciliation And Political Indoctrination In Post-Genocide Rwanda Note, Chi Adanna Mgbako
Ingando Solidarity Camps: Reconciliation And Political Indoctrination In Post-Genocide Rwanda Note, Chi Adanna Mgbako
Faculty Scholarship
This Note, based primarily on interviews with ingando participants, government officials, journalists, and genocide survivors conducted in Rwanda in January 2004, evaluates the merits and limits of government-run ingando solidarity camps as a means of fostering reconciliation in the complicated social landscape of post-genocide Rwanda. Focusing on ingando for ex-combatants, ex-soldiers, students, and released genocidaires, this Note argues that much of the ingando project is focused on the dissemination of pro-RPF ideology, a dangerous undertaking in a country in which political indoctrination and government-controlled information were essential in sparking and sustaining the genocide. Furthermore, a successful reconciliation program must take …
Religious Lawyering Critique, The Aals Presentations, Bruce A. Green
Religious Lawyering Critique, The Aals Presentations, Bruce A. Green
Faculty Scholarship
One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on "religious lawyering" is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other …
Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein
Historical Roots Of Regional Sentencing Variation, The Symposium, Ian Weinstein
Faculty Scholarship
I am a law professor and a criminal defense lawyer, not a historian. It is with some trepidation that I stand before you to suggest that our very persistent regional sentencing variations have roots in the political struggles of Reformation England and the cultures of the subgroups that populated the first American colonies. I rely upon others for the historical proof, as you will see, but I think I do have standing to argue to you that we should consider whether or not there is room, even in federal sentencing, to account for deeply embedded regional variations in our basic …
Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee
Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee
Faculty Scholarship
In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh's presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court's decision, this Article discusses …
Theory Of Punitive Damages, Benjamin C. Zipursky
Theory Of Punitive Damages, Benjamin C. Zipursky
Faculty Scholarship
A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of …
Technology And Internet Jurisdiction, Joel R. Reidenberg
Technology And Internet Jurisdiction, Joel R. Reidenberg
Faculty Scholarship
No abstract provided.
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
Faculty Scholarship
The variation and complexity of national data privacy rules pose significant challenges for international data flows. Data protection laws range from ad hoc narrow legal rights, like those found in the United States, to comprehensive fair information practice statutes like those found in Europe. Because data processing frequently occurs across national borders, multiple data protection laws might apply simultaneously to international data flows. At the same time, data protection regimes may prohibit the circumvention of national standards by processing personal information at a foreign site. Global information processing thus presents a data controller with important burdens and obstacles related to …
Good Faith Business Judgment: A Theory Of Rhetoric In Corporate Law Jurisprudence, Sean J. Griffith
Good Faith Business Judgment: A Theory Of Rhetoric In Corporate Law Jurisprudence, Sean J. Griffith
Faculty Scholarship
This Article develops a theory of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case law: the emerging principle of “good faith.” Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between the authority of boards and the accountability of boards to courts. This Article argues, however, that good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech act, a performance, …
Uncovering A Gatekeeper: Why The Sec Should Mandate Disclosure Of Details Concerning Directors' And Officers' Liability Insurance Policies, Sean J. Griffith
Uncovering A Gatekeeper: Why The Sec Should Mandate Disclosure Of Details Concerning Directors' And Officers' Liability Insurance Policies, Sean J. Griffith
Faculty Scholarship
This Article explores the connection between corporate governance and directors’ and officers’ (D&O) insurance. It argues that D&O insurers act as gatekeepers and guarantors of corporate governance, screening and pricing corporate governance risks to maintain the profitability of their risk pools. As a result, in a well-working insurance market, D&O insurance premiums would convey the insurer's assessment of a firm's governance quality. Simply stated, firms with better corporate governance would pay relatively low D&O premiums, while firms with worse corporate governance would pay more. This simple relationship could signal important information to investors and other capital market participants. Unfortunately, the …
Law And The Rise Of The Firm , Henry Hansmann, Reiner Kraakman, Richard Squire
Law And The Rise Of The Firm , Henry Hansmann, Reiner Kraakman, Richard Squire
Faculty Scholarship
Organizational law empowers firms to hold assets and enter contracts as entities that are legally distinct from their owners and managers. Legal scholars and economists have commented extensively on one form of this partitioning between firms and owners: namely, the rule of limited liability that insulates firm owners from business debts. But a less-noticed form of legal partitioning, which we call "entity shielding," is both economically and historically more significant than limited liability. While limited liability shields owners' personal assets from a firm's creditors, entity shielding protects firm assets from the owners' personal creditors (and from creditors of other business …
On Collaboration, Organizations, And Conciliation In The General Theory Of Contract, Ethan J. Leib
On Collaboration, Organizations, And Conciliation In The General Theory Of Contract, Ethan J. Leib
Faculty Scholarship
Daniel Markovits's Contract and Collaboration is a thought-provoking and ground-breaking inquiry into the ethics of contract. It argues that the philosophical foundation of contract may be found in what Markovits calls the collaborative view: a principle of forming respectful communities of collaboration where contractors treat each other as ends in themselves and refrain from treating each other as mere instrumentalities. Markovits acknowledges that there are three prototypical forms of contracts: (1) person-to-person; (2) person-to-organization; and (3) organization-to-organization. He is refreshingly honest in arguing that his theory of contract only addresses Type (1) contracts. I wish to argue here that this …
Criminal Law In A Post-Freudian World, Deborah W. Denno
Criminal Law In A Post-Freudian World, Deborah W. Denno
Faculty Scholarship
Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of …
Decline And Fall Of Legislative History - Patterns Of Supreme Court Reliance In The Burger And Rehnquist Eras, The, James J. Brudney, Corey Distlear
Decline And Fall Of Legislative History - Patterns Of Supreme Court Reliance In The Burger And Rehnquist Eras, The, James J. Brudney, Corey Distlear
Faculty Scholarship
Reliance on legislative history in the Court's majority opinions has fallen from nearly 50 percent during the Burger era to less than 30 percent since 1985.
15th Annual Forum On Affordable Housing & Community Development Law: 2006 Michael Scher Award Given To William C. Kelly, Nestor M. Davidson, Leonard A. Zax
15th Annual Forum On Affordable Housing & Community Development Law: 2006 Michael Scher Award Given To William C. Kelly, Nestor M. Davidson, Leonard A. Zax
Faculty Scholarship
No abstract provided.
Housing First' For The Chronically Homless: Challenges Of A New Service Model, Nestor M. Davidson
Housing First' For The Chronically Homless: Challenges Of A New Service Model, Nestor M. Davidson
Faculty Scholarship
Increasingly in recent years, policymakers have focused their efforts on ending chronic homelessness and, in particular, on individuals grappling with mental illness, substance abuse, and similar challenges. Central to this effort has been the rise of a new model of service provision called Housing First. Housing First reverses the long-standing practice of conditioning housing on compliance with treatment plans or other service requirements, instead providing immediate independent living for chronically homeless individuals with dual or multiple diagnoses and only then making intensive services available. This Commentary reviews this important policy shift and explores some conceptual and practical challenges in moving …