Law Commons^™

Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney

The Ohio State University Moritz College of Law Working Paper Series

This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the …

Hope And Misgiving About Lawyers, Consensus-Building, And Social Problem-Solving, Jennifer Gerarda Brown

Nevada Law Journal

No abstract provided.

The Enduring Significance Of State Sovereignty, Brad R. Roth

Law Faculty Research Publications

No abstract provided.

The Lawyer's Role(S) In Deliberative Democracy, Carrie Menkel-Meadow

Nevada Law Journal

No abstract provided.

Lawyers, Democracy And Dispute Resolution: The Declining Influence Of Lawyer-Statesmen Politicians And Lawyerly Values, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Legal Pragmatism, An Ideal Speech Situation, And The Fully Embodied Democratic Process, Dmitri N. Shalin

Nevada Law Journal

No abstract provided.

The Bright Future Of Gay Marriage, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Identity Politics And The Second Amendment, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Reflections On Brown And The Future, Oliver W. Hill Sr.

University of Richmond Law Review

No abstract provided.

The Autonomy Of Church And State, Brett G. Scharffs

BYU Law Review

No abstract provided.

Three Concepts Of Church Autonomy, Ronald R. Garet

BYU Law Review

No abstract provided.

Dissent And Disestablishment: The Church-State Settlement In The Early American Republic, Carl H. Esbeck

BYU Law Review

No abstract provided.

True Believers Or Moral Absolutists, Seow Hon Tan

Research Collection Yong Pung How School Of Law

The recent American presidential elections brought to the fore the question of what place moral values have in public decision-making when traditional moral values are not espoused by all in a pluralist society. Even if traditional values - seen as absolutist - are imposed on others through a democratic electoral process, that imposition, particularly in hot button issues like abortion and same-sex marriage, remains difficult to accept.

Essay: New Political And Legal Strategies For African-Americans: Dreaming Big, Dreaming Creatively, Maxim Thorne

ExpressO

Maxim Thorne, a Yale Law School Graduate of 1992, writes an essay derived from his address delivered on October 1, 2004 at the thirty-fifth anniversary of the African-American Cultural Center at Yale University, entitled "New Political and Legal Strategies For African-Americans: Dreaming Big, Dreaming Creatively." He presents Seven Strategies that African Americans should use to secure power and justice in America: 1) Go Home, 2) Public Schools Aren’t Our Only Option and other paradigm shifting legal arguments 3) Draw On the Power of Older Women of Color, 4) Network Your Heart Out, Giving Time, Advice, and Money, 5) Honor Our …

Unlv Magazine, Holly Ivy De Vore, Nancy Syzdek, Patrice E.M. Hollrah, Douglas Unger, Eugene Moehring, Gillian Silver, John F. Gallagher, Lori Bachand, Gian Galassi, Hal Rothman, Mark Hoversten, Phil Hagen, Donna Mcaleer, Suzan Dibella

UNLV Magazine

No abstract provided.

A Legislative Strategy Conditioned On Corruption: Regulating Campaign Financing After Mcconnell V. Fec, Bryan R. Whitaker

Indiana Law Journal

No abstract provided.

Law In A Time Of Emergency, Kim Lane Scheppele

All Faculty Scholarship

This article examines the domestic and foreign policy responses of the Bush administration to the events of 9/11 and contrasts them with the primary responses of America’s democratic allies in Europe. Both sets of responses are understood through the lens of Carl Schmitt’s writing on the nature of the state of exception, which in many ways provides a blueprint for contemporary American conceptions of emergency powers while providing a notorious and unsuccessful attempt to justify emergency powers to contemporary Europeans. I argue that the divergence in the standard understandings of two formative historical events help explain European and American differences …

Other People's Patriot Acts: Europe's Response To September 11, Kim Lane Scheppele

All Faculty Scholarship

After September 11, many countries changed their laws to make it easier to fight terrorism. They did so in part because the United Nations Security Council passed Resolution 1373 under its Chapter VII powers. The resolution required all Members of the United Nations to criminalize terrorism, to prevent their territory from being used to plan or promote terrorism, to crack down on terrorism financing, to tighten up immigration and asylum procedures and to share information about terrorists and terrorist threats with other states. This article examines what happened to the Security Council mandate when it got to Europe by first …

Constitutional Ethnography: An Introduction, Kim Lane Scheppele

All Faculty Scholarship

Constitutional ethnography is the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape. This article provides an introduction to this sort of study by contrasting constitutional ethnography with multivariate analysis and with nationalist constitutional analysis. The article advocates not a universal one-size-fits-all theory or an elegant model that abstracts away the distinctive, but instead outlines an approach that can identify a set of repertoires found in real cases. Learning the set of repertoires that constitutional ethnography reveals, one can see more deeply into particular cases. Constitutional ethnography …

Fear And Risk In 'Times Of Crisis': The Media's Challenge, Richard C. Reuben

Faculty Publications

As we have heard time and again during this conference, perspective is a crucial safeguard against the distorting effect of fear. While space and consumer patience may be thin, it is during times of crisis that the media's capacity to provide context becomes most important. This is part of the challenge of risk communication. Editors need to insist on this perspective rather than trying to cut it out if the story still reads, and reporters need to learn how to write about it effectively as well as compellingly. None of these challenges is easy. Institutional reform never is. But I …

Job Security And Bargaining Rights Of Federal Government Employees, Mark D. Roth, Gony Frieder, Anne Wagner

University of the District of Columbia Law Review

From the beginning of his administration, President George Walker Bush undertook to curtail employment rights, particularly those previously enjoyed by federal government workers. In the wake of the September 11th attacks, however, the Bush Administration was able to launch a full-scale attack on federal employment rights under the guise of national security. While the expansion of government power in the name of national security has come under substantial media and political scrutiny, much of this attention has focused on the threat posed to individual rights. Increased federal power under the USA PATRIOT Act' and other measures2 ostensibly intended to enhance …

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …

L.A. Race Woman: Charlotta Bass And The Complexities Of Black Political Development In Los Angeles, Regina Freer

Regina Freer

Using her platform as owner and editor of Los Angeles's prominent black newspaper the California Eagle from 1912-1951, L.A. race woman Charlotta Bass was at the center of black political life of the city. This article examines her life and political activism as they offer a lens into the history of black community response to the particular demography, geography, politics and economics of Los Angeles and African American's expectations of what life should be like in the city. While black Angelenos confronted pitched job market competition and familiar white resistance to black advancement, blacks in L.A. did experience a form …

Toward A Small Donor Democracy: The Past And Future Of Incentive Programs For Small Political Contributions, Thomas J. Cmar

ExpressO

Political contribution incentive programs are a promising, under-explored means to address the problem of political equality in the American system of campaign finance. If properly designed, these programs -- which include tax credits, refunds, and vouchers -- could allow all Americans to participate on an equal basis in the crucial early-stage decisions that determine which candidates decide to run and are able to compete effectively. This article, written on behalf of U.S. PIRG, proposes a tax credit for political contributions as a first step toward building a "small donor democracy."

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

Shakedown At Gucci Gulch: A Tale Of Death, Money & Taxes, Edward J. Mccaffery, Linda R. Cohen

ExpressO

Ever since Mancur Olson's The Logic Of Collective Action was published in 1965, if not before, the traditional conception of politics in Western democracies has given pride of place to special interests -- small groups with high stakes -- seeking favors from legislators. These groups are able to solve the coordination and free-rider problems that plague larger group interests, and get their way in Congress and other legislative bodies by doling out campaign contributions and other benefits. The groups are the predator, legislators the prey. In this article we argue that in an important range of cases, the traditional conception …

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

ExpressO

The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

The Historical And Political Origins Of The Corporate Board Of Directors, Franklin A. Gevurtz

ExpressO

Prompted by the litany of complaints about corporate boards – as once again highlighted by recent corporate scandals – this paper seeks to add to the literature on why corporation laws in the United States (and, indeed, around the world) generally call for corporate governance by or under a board of directors. Moreover, this paper takes a very different approach in searching for an answer. Instead of theorizing, this paper examines historical sources in order to look at how and why an elected board of directors came to be the accepted mode of corporate governance. This will entail a reverse …

Liking To Be In America: Puerto Rico's Quest For Difference In The United States, Ángel Oquendo

Faculty Articles and Papers

No abstract provided.