Law Commons^™

Kettle Range Conservation Group V. Washington Dep't Of Natural Res., No. 29077-4-Ii, 2003 Wash. App. Lexis 3053 (Wash. Ct. App. Dec. 23, 2003), Brian M. Forbush

Water Law Review

No abstract provided.

O'Hagan V. State, No. 28897-4-Ii, 2003 Wash. App. Lexis 2928 (Wash. Ct. App. Dec. 16, 2003), Holly Shook

Water Law Review

No abstract provided.

Wilson V. Lucerne Canal & Power Co., 77 P.3d 412 (Wyo. 2003), Chris Wittenbrink

Water Law Review

No abstract provided.

Are States Still In Charge? - American Bar Association Section Of Environment, Energy, And Resources 22nd Annual Water Law Conference, Water Law Review

Water Law Review

No abstract provided.

Vol. 7, No. 2: Full Issue, Water Law Review

Water Law Review

No abstract provided.

Punishment, Guilt, And Shame In Biblical Thought, George P. Fletcher

Faculty Scholarship

The centrality of guilt in the criminal law provides puzzling perspective in the perennial debate on the nature and purpose of punishment. Why is it that all legal systems use this highly charged moral term to refer to an essential component of liability to punishment? This question is not easily answered. The reliance on the concept of guilt in the criminal law is suffused with paradox and mystery.

A Mirage In The Sand? Distinguishing Binding And Non-Binding Relations Between States, Christine M. Chinkin

Book Chapters

The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court's willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes …

Regulatory Frameworks In International Law, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of domestic law. This chapter examines international law in the particular setting of regulation of outsider entities, such as failed and nascent states, that is where international regulation fills the vacuum caused by the collapse of domestic institutions and the rule of law. Through a brief examination of international regulation in Bosnia–Hercegovina and East Timor, this chapter asks what light a regulatory lens sheds on international law. Drawing on Hugh Collins's …

Sexual Harassment: An International Human Rights Perspective., Christine M. Chinkin

Book Chapters

This chapter considers sexual harassment in the workplace from the perspective of international human rights law. Adopting a human rights approach locates sexual harassment in the context of women’s economic and social rights and more broadly in the wider frame of international imperatives such as the maintenance of international peace and security and global economic development. Sexual harassment has come onto the international agenda comparatively recently, and the story comprises both the inclusion of prohibitions within legal instruments and significant silences, especially where breaking the silence requires intrusion into state policies relating to militarism, trade and investment liberalization, and the …

Meaning What You Say, James Boyd White

Book Chapters

In this essay I talk about a wide range of themes in the hope of establishing a connection among them: writing (including the teaching of writing) and what is at stake, for the writer and the rest of the world, in doing it well or badly; certain forces in our culture-hard to define and understandthat tend to reduce or trivialize human experience, indeed the very value of the human being; the conception of the human being, not trivial at all, that underlies our practices of self-government in general and constitutional democracy in particular; and the idea of justice at work, …

External Law In Arbitration Hard-Boiled, Soft-Boiled, And Sunny-Side Up, Theodore J. St. Antoine

Book Chapters

Thirty-seven years ago Bernie Meltzer and the late Bob Howlett squared off at our annual meeting in a classic confrontation on an issue that refuses to die. What should an arbitrator do when there is a seemingly irreconcilable conflict between a provision of a collective bargaining agreement and the dictates of external law? Professor Meltzer was the hard-boiled logician. Arbitrators' proper domain is the parties' contract, said he, and we "should respect the agreement and ignore the law" when the two diverge. Howlett took the softer, more accomodating approach. He reasoned that "every agreement incorporates all applicable law" and so …

The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

In response to concerns over the efficacy of the WTO dispute settlement system, especially in regard to its use by developing countries, Mexico has tabled a proposal to introduce tradable remedies within the Dispute Settlement Understanding. The idea is that a country that has won cause before the WTO, and who is facing non-implementation by the author of the illegal act but feels that its own capacity to exercise its right to impose countermeasures is unlikely to lead to compliance, can auction off that right. The attractiveness of this idea is that it offers an additional possibility to injured WTO …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

Home And Homelessness In The Middle Of Nowhere, William I. Miller

Book Chapters

In Iceland one must have a home; it is an offense not to-in some circumstances, a capital offense. A sturdy beggar was liable for full outlawry, which meant he could be killed with impunity. The laws are hard on vagrants. Fornication with a beggar woman was unactionable; it was lawful to castrate a vagabond, and he had no claim if he were injured or killed during the operation. One could take in beggars solely for the purpose of whipping them, nor was one to feed or shelter them at the Thing on pain of lesser outlawry. Their booths at the …

Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance And Kant: Toward A Moral Theory Of Good Governance, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

The governance rules mandated by Sarbanes-Oxley, and the SEC regulations thereunder, were in direct response to many of the specific misdeeds of the Enron, WorldCom and other scandals, leaving corporate lawyers scrambling to keep their clients in technical compliance, but wondering whether it would create better governance. In this paper, I contend first that the frustrations with Sarbanes-Oxley have their basis in the jurisprudence underlying Sarbanes - the presence or absence of articulated policies and principles underlying the specific rules. I assess the law under modern positivist and naturalist theories, and point out ironies in its ultimate application. Second, I …

The Limits On Congress's Authority To Investigate The President, William P. Marshall

Faculty Publications

No abstract provided.

International Service Under The Hague Convention, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Preface, Jerri Shepard

Journal of Hate Studies

The pueblo’s elders called a council to decide what to do about the federal government’s proposal for a land trade involving mineral rights. A fire burned at the center of the kiva’s dirt floor, around which the twelve elders gathered. A traditional reflection stone sat on the open side of the fire, opposite the sipapu, which signified the opening in the earth through which the first people arrived from the unseen worlds. A ledge cut into the curved adobe wall held pots, drums, and bundles of dried corn.

Identity-Driven Violence: Reclaiming Civil Society, Kenneth R. Hoover, Vernon D. Johnson

Journal of Hate Studies

The increase in identity-based violence both domestically and internationally is focusing attention on the need for proactive approaches to reconciliation. The rise of militia movements, and the associated phenomenon of malicious racial harassment in the Pacific Northwest, demonstrates the dangers arising from identity-driven violence. The broad scale success of an anti-affirmative action initiative illustrates the wider significance of discriminatory attitudes. This article addresses those dangers by illustrating the convergence of two kinds of theories about identity-based violence. We will demonstrate how individual- level explanation taken from empirical work in the field of developmental psychology fits with social movement theory to …

The Genetic/Evolutonary Basis Of Prejudice And Hatred, Harold D. Fishbein

Journal of Hate Studies

I believe that prejudice underlies the development of hatred toward various outgroups. Hence, in order to understand the origins of hatred, it is essential to understand the origins of prejudice. Our genetic/evolutionary heritage provides the initial push toward prejudice. My essential argument is that three sets of genetic/evolutionary processes that lead to prejudice and discrimination evolved in hunter-gatherer tribes. They were appropriate and necessary for that subsistence mode, which characterizes 99% of human existence. These three sets of processes—inclusive fitness, authority-bearing systems, intergroup hostility— are put into motion in nonhunter-gatherer contexts because they have been incorporated into our epigenetic systems. …

The Social Psychology Of Hatred, Evan R. Harrington

Journal of Hate Studies

Hatred has not typically been a topic of research in the field of social psychology, although several components which embody hatred have been studied extensively in this field. Social psychologists have traditionally considered prejudice, stereotyping, discrimination and intergroup aggression to be highly important and socially relevant topics for research, and thousands of studies by social psychologists have examined these and other issues related to hatred. There are three primary approaches social psychologists have utilized in studying prejudice and intergroup aggression. The first approach may be thought of as a general model of social influence in which a variety of situational …

Teaching A General Education Course On Hate Crimes: Challenges And Solutions, Phyllis B. Gerstenfeld J.D., Ph.D.

Journal of Hate Studies

Almost ten years ago, I began teaching a course on hate crimes. This course was originally created as an upper division elective for undergraduate Criminal Justice majors. In the years since, the course has been adapted slightly so that it now serves to satisfy our General Education “Multicultural” requirement. The course is a popular one—in the fall of 2003, I had 62 students—and one I enjoy teaching. However, teaching this course has also presented several challenges. In this paper, I describe some of the challenges I have faced, as well as the approaches I have taken to meeting these challenges. …

Our Ancestral Shadow: Hate And Human Nature In Evolutionary Psychology, James E. Waller

Journal of Hate Studies

In some unique ways, each of us is like no other human being. In other ways, each of us is like some other human beings. And, in yet some other ways, each of us is like all other human beings. The question of the nature of human nature is captured in this final statement. In what ways are we like every other person that has gone before us and will come after us? This question is particularly relevant to the emerging field of hate studies. Is there an endowment with which each of us begins our life that is important …

Prescribing The Right Dose Of Peer Review For The Endangered Species Act, J.B. Ruhl

Vanderbilt Law School Faculty Publications

....what I examine here is whether scientific-style peer review, depending on how it is dosed out, could be counterproductive for environmental law.The use of peer review as a component of regulatory procedure has not received much discrete attention in environmental law literature, but it is truly the sleeping dog of the "sound science" movement. Understanding this concept requires some background on science and administrative law. The "sound science" movement, as its name suggests, advocates that environmental law decisions be based principally on scientific information and conclusions that have been derived through the rigorous, unbiased practice of science. Science is generally …

Beyond Blakely, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In …

The New Look Of Shareholder Litigation: Acquisition-Oriented Class Actions, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Shareholder litigation is the most frequently maligned legal check on managerial misconduct within corporations. Derivative lawsuits and federal securities class actions are portrayed as slackers in debates over how best to control the managerial agency costs created by the separation of ownership and control in the modern corporation. In each instance, early hopes these suits would effectively monitor managerial misconduct have been replaced with concerns about the size of the litigation agency costs of such representative litigation, which can arise when a self-selected plaintiff's attorney and her client that are appointed to pursue the claims of an entire class of …

Reforming Corporate Governance: What History Can Teach Us, Margaret M. Blair

Vanderbilt Law School Faculty Publications

In this Article, I turn to the history of corporate law for insight into the role that the corporate form plays in the organization of business enterprises. I then draw implications from this history for thinking about circumstances and situations in which corporate directors should have unimpeded control over business decisions, versus situations in which shareholders should have more input and control over business decisions. In Part I, I review historical evidence of the rapid growth in demand for the corporate form to organize businesses in the United States during the early nineteenth century. I compare the law that governed …

The President's Power To Detain "Enemy Combatants": Modern Lessons From Mr. Madison's Forgotten War, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

This article uses three sets of cases from the War of 1812 to illustrate three problems with how modern courts have approached the detention of "enemy combatants" in the United States. The War of 1812 cases show that modern courts have relied too heavily on deference-based reasoning, and have failed to adequately consider both international law and congressional authorization when upholding the detentions as constitutional. The War of 1812, termed "Mr. Madison's War" by contemporary opponents, was fought largely on our own territory against a powerful foreign enemy, making it an especially rich source for comparison to the modern war …

The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

People seriously misjudge accident risks because they routinely neglect relevant information about exposure. Such risk judgments affect both personal and public policy decisions, e.g., choice of a transport mode, but also play a vital role in legal determinations, such as assessments of recklessness. Experimental evidence for a sample of 422 jury-eligible adults indicates that people incorporate information on the number of accidents, which is the numerator of the risk frequency calculation. However, they appear blind to information on exposure, such as the scale of a firm's operations, which is the risk frequency denominator. Hence, the actual observed accident frequency of …

The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack

Vanderbilt Law School Faculty Publications

There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct …