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2005

Public Law and Legal Theory

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Articles 1 - 30 of 123

Full-Text Articles in Law

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham Dec 2005

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of ...


High Turnover And Low Reputation? Elements Of Sociology Of The Supreme People’S Court Grand Justices (Summary), Meng Hou Dec 2005

High Turnover And Low Reputation? Elements Of Sociology Of The Supreme People’S Court Grand Justices (Summary), Meng Hou

Hou Meng

No abstract provided.


Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders Dec 2005

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new ...


David P. Forsythe On Non-State Actors And Human Rights. Edited By Philip Alston. Oxford, Uk: Oxford University Press, 2005. 350pp., David P. Forsythe Dec 2005

David P. Forsythe On Non-State Actors And Human Rights. Edited By Philip Alston. Oxford, Uk: Oxford University Press, 2005. 350pp., David P. Forsythe

Human Rights & Human Welfare

No abstract provided.


Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins Nov 2005

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".


Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham Nov 2005

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Michigan Law Review

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected ...


Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar Oct 2005

Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy ...


Rhode Island Court Resolves Palazzolo, Jonathan Lew Oct 2005

Rhode Island Court Resolves Palazzolo, Jonathan Lew

Sea Grant Law Fellow Publications

No abstract provided.


Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush Sep 2005

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

ExpressO

No abstract provided.


The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt Sep 2005

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

ExpressO

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of ...


Project Bioshield, More Than Meets The Eye: A Critique Of The U.S.’S Proposed Silver Bullet For Responding To Bio-Terrorism, Jodi A. Phillipo Sep 2005

Project Bioshield, More Than Meets The Eye: A Critique Of The U.S.’S Proposed Silver Bullet For Responding To Bio-Terrorism, Jodi A. Phillipo

ExpressO

No abstract provided.


Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor Sep 2005

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.


Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super Sep 2005

Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super

Faculty Scholarship

Regulations issued by the Food and Nutrition Service, U.S. Department of Agriculture in July 2000 promote efficient and effective food stamp claims collection by the states. These regulations give states significant flexibility in tailoring their procedures on filing claims. States can incorporate waiver and compromise policies that increase efficiency and can serve low-income households.


Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley Aug 2005

Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley

ExpressO

No abstract provided.


The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen Aug 2005

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, by bet-hedging ...


Private Property, Development And Freedom, Steven J. Eagle Aug 2005

Private Property, Development And Freedom, Steven J. Eagle

George Mason University School of Law Working Papers Series

The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.


Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns Aug 2005

Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns

George Mason University School of Law Working Papers Series

In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion ...


Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree Aug 2005

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.


Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli Aug 2005

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but ...


Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil Aug 2005

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not ...


Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas Aug 2005

Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas

ExpressO

The political theorist William Galston argues that the liberal political tradition contains two distinct strands of philosophical thought. One emphasizes the principle of autonomy, while the other stresses the principle of diversity. These principles, according to Galston, are in tension with each other and as guiding criterions lead to quite different public policies. Autonomy-centered liberalism seeks to promote autonomy or “individual self-direction”; it reflects a “commitment to sustained rational examination of self, others, and social practices.” As such, autonomy-centered liberals are generally suspicious of religious belief and seek to confine it to the private sphere. Diversity-centered liberalism, on the other ...


Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino Aug 2005

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions ...


How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar Aug 2005

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

ExpressO

This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest ...


The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin Aug 2005

The Myth Of Accountability And The Anti-Administrative Impulse, Edward Rubin

Michigan Law Review

The idea of accountability is very much in fashion in legal and political thought these days. To be sure, the term is used in a variety of different ways, but that is the nature of fashion. Colored cloth ponchos may be in fashion this season, for example, but they can be shaped and colored in a variety of different ways. It is differences of this sort that sustain a fashion trend. If the only poncho available were red and square, the fashion trend would display an impressive unity, but it wouldn't last very long. In order to make sales ...


A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity Jul 2005

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

ExpressO

This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the ...


From International Law To Law And Globalization, Paul Schiff Berman Jul 2005

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection of ...


Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman Jul 2005

Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman

ExpressO

It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content ...


In Search Of A Theory Of Public Memory: The State, The Individual, And Marcel Proust, Brian F. Havel Jul 2005

In Search Of A Theory Of Public Memory: The State, The Individual, And Marcel Proust, Brian F. Havel

Indiana Law Journal

This Article posits the existence and pervasiveness of an official public (or State) memory that is primarily constructed using public law devices and statements of official policy. While official public memory serves the purposes of social control and stability, it also seeks to mask contestation and is, accordingly, neither complete nor authentic. Using philosophical, scientific, and literary sources, this Article demonstrates how the affective (emotional) memory that is unique to individuals creates a permanent potential for contestation and authenticity and therefore sets a natural conceptual limit to the power of officially managed memory to contrive the past. To help establish ...


A Path To Vindication Of The Rule Of Law: Administrative Court’S Generous Approach To Standing And Third Party Interventions, Ibrahim Sule Jun 2005

A Path To Vindication Of The Rule Of Law: Administrative Court’S Generous Approach To Standing And Third Party Interventions, Ibrahim Sule

Ibrahim Sule

No abstract provided.


Overcriminalization, Discretion, Waiver: A Survey Of Possible Exit Strategies, Donald A. Dripps Jun 2005

Overcriminalization, Discretion, Waiver: A Survey Of Possible Exit Strategies, Donald A. Dripps

University of San Diego Public Law and Legal Theory Research Paper Series

In both the constitutional law of American criminal justice and the scholarly literature that law has generated, substance and procedure receive radically different treatment. The Supreme Court, even in this conservative political period, continues to require costly procedural safeguards that go beyond what elected legislatures have provided by statute. The Court, however, has shown great deference to the choices these same legislatures have made about what conduct may be made criminal and how severely it may be punished.

The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its ...