Law Commons^™

Legal Scholarship As Resistance To 'Science', Steven D. Smith

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

Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing “Why We Write?”, considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the “scientific” worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons.

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 …

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

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

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

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

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

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

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

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

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

Ethics In Government At The Local Level, Vincent R. Johnson

ExpressO

No abstract provided.

Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller

Public Law and Legal Theory Papers

We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" -- fact-based and law-based determinations made during the sentencing phase -- to maximize the judges' sentencing preferences subject to the Guideline’s constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the …

Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller

Public Law and Legal Theory Papers

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …

Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller

Law and Economics Papers

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

What Is Legal Doctrine, Emerson Tiller, Frank B. Cross

Public Law and Legal Theory Papers

Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others’ efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe …

Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane

The Ohio State University Moritz College of Law Working Paper Series

Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a …

Markets & Democracy: The Illegitimacy Of Corporate Law, Daniel J.H. Greenwood

ExpressO

Corporate law does not conform to ordinary democratic norms. Unlike human citizens, corporations may decide which law will govern their most fundamental acts of self-governance. The corporate law corporation choose in turn influences the corporate goals and decision-making processes that determine what the corporation looks for in corporate law in a reflexive system independent of ordinary political processes.

This system seems on its face to violate the most fundamental principle of popular sovereignty–all non-Delaware citizens of the United States are excluded from even formal participation in the process of determining American corporate law, and even Delaware citizens are reduced to …

Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott

The Ohio State University Moritz College of Law Working Paper Series

We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …

Improving Fairness And Accuracy In Food Stamp Fraud Investigations: Advocating Reform Under Food Stamp Regulations, David A. Super

Faculty Scholarship

Some state food stamp agencies are overly aggressive in pursuing charges that claimants have committed intentional program violations. Just as failure to pursue allegations of fraud can undermine the Food Stamp Program’s goals, so can intimidation of claimants. States should take care to follow appropriate procedures in their investigations, and Food and Nutrition Service regulations offer ample grounds to advocate fair treatment of clients. Four key principles should guide states’ antifraud efforts.

Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd

Michigan Law Review

Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

ExpressO

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign’s power, enable the sovereign to make such commitments. This essay advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems – undercommitment and overcommitment – between which they must steer: an actor that can bind itself …

Out Of Bounds: San Francisco's Homeless Policies, Alexandra Flynn

ExpressO

Homelessness, both a legal and public policy issue, has dominated the City of San Francisco government agenda for over fifteen years. Despite the front-and-center nature of homelessness, the policies enacted have done little to reduce the count. This paper, first, presents San Francisco’s new approach to the issue; namely, the creation of a new and far more limited class of “chronically homeless” persons. This first section includes an examination of the causes of homelessness, the physical alienation of homeless persons through “quality of life” laws, and recent policy initiatives used to social exclude the bulk of homeless persons by limiting …

Constitutionalism Through The Looking Glass Of Latin America, Miguel Schor

ExpressO

This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article …

The High School Attainment Credit: A Tax Credit Encouraging Students To Graduate From High School, David Richard Hansen

ExpressO

High school dropouts are a serious problem facing America today. High school dropouts are more likely to be unemployed, earn less money when employed, place a larger burden on the government by requiring public assistance (welfare), and are more likely to be prone to a life of crime and violence than high school completers. While government at all levels continues to focus on schools and teachers in solving the dropout problem, this paper shows how parents are where the focus should lie. This paper proposes a revolutionary tax credit, the High School Attainment Credit (“HSAC”), which would cost-effectively eradicate the …

Supreme Court In Vicissitude Of Economic System (1949-1978)【经济体制变迁中的最高人民法院（1949─1978年）】, Meng Hou

Hou Meng

No abstract provided.

Empirical Research On The Capacity Of Regulating Economy Of The Supreme Court: From The Overhead Expenses In The Court（最高法院规制经济的实证研究──以法院内部管理费用为分析视角）, Meng Hou

Hou Meng

No abstract provided.

A Primer On The Theory, Practice, And Pedagogy Underpinning A School Of Thought On Law And Business, James E. Holloway

University of Michigan Journal of Law Reform

Recent policyless and lawless business decisions have prompted the judiciary and legislature to erode managerial discretion and judgment. This Article is a primer on the theoretical, practical, and pedagogical requirements for a legal-managerial school of thought to measure the business losses created by these judicial and legislative responses. A legal-managerial school must provide a theoretical evaluation of law and public policy, a practical integration of legal analysis and business methodology, and a pedagogical expansion of legal thinking to include business information. This Article initiates the debate on how a legal-managerial school of thought can further the study, practice, and teaching …

Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan

ExpressO

Abstract This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt

The Ohio State University Moritz College of Law Working Paper Series

Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit.

Public Agencies As Lobbyists, Jody Freeman

ExpressO

No abstract provided.

The North Korean Nuclear Crisis: Past Failures And Present Solutions, Morse Tan

ExpressO

North Korea has recently announced that it has developed nuclear weapons and has pulled out of the six-party talks. These events do not emerge out of a vacuum, and this article lends perspective based on an interdisciplinary lens that seeks to grapple with the complexities and provide constructive approaches based on this well-researched understanding. This article analyzes political, military, historical, legal and other angles of this international crisis.

Past dealings with North Korea have been unfruitful because other nations do not recognize the ties between North Korean acts and its ideology and objectives. For a satisfactory resolution to the current …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"