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2006

Public Law and Legal Theory

Public Law and Legal Theory

Articles 31 - 60 of 72

Full-Text Articles in Law

Marriage And The Elephant: The Liberal Democratic State’S Regulation Of Intimate Relationships Between Adults , Maxine Eichner Aug 2006

Marriage And The Elephant: The Liberal Democratic State’S Regulation Of Intimate Relationships Between Adults , Maxine Eichner

ExpressO

This essay considers the current debate in legal theory over the stance that the state should adopt toward intimate relationships between adults. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships …


Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho Aug 2006

Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho

ExpressO

This Article is the first cross-disciplinary, comprehensive assessment of one of the earliest regulatory reinvention programs developed to foster more participation and adaptation in decision-making—the Endangered Species Act’s Habitat Conservation Plan Program. Drawing not only from legal sources but also integrating data from recent scientific studies, interviews, surveys of government officials, newspaper investigations, and unpublished databases, this Article delves into the pioneering but defective HCP program as an example of regulatory innovation gone awry.

In the active literature on regulatory reinvention, many have pointed to the HCP program as a prototype for collaborative, experimentalist innovations in governance. Though a few …


Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington Aug 2006

Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington

ExpressO

It is axiomatic that members of the United States military forces at all levels and throughout the course of the nation’s history have fought for the essential freedoms which underlie the constitution – key among them the suffrage right. Over the course of its history, the suffrage right has seen controversy and change, which mirrored the social and political issues and changed realities of the country. As the right to vote has been extended to encompass more citizens, so too has the ability to serve one’s country as part of the military. In recognition of the importance of the right …


The Purpose Of Child Support, Ira M. Ellman Aug 2006

The Purpose Of Child Support, Ira M. Ellman

ExpressO

What is the appropriate amount of child support to require in particular cases? How should we take account, if at all, of subsequent events such as either parent’s remarriage? It seems obvious that the answers to such questions ought to turn on our purpose in requiring support payments in the first place. But while fixing the amount of child support can be politically contentious, and has attracted the attention of partisans on both sides of the gender gap, the literature contains no systematic examination of support rules in light of their underlying policy purpose. This article fills that gap. It …


Thomas Aquinas And The Metaphysics Of Law, William S. Brewbaker Aug 2006

Thomas Aquinas And The Metaphysics Of Law, William S. Brewbaker

ExpressO

Despite modernity’s longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts– Thomas Aquinas’ still-widely-read Treatise on Law-- with a view toward tracing the influence of Thomas’ metaphysical presuppositions.

This article shows that Thomas’ account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas’ hierarchical view of reality exposes tensions between Thomas’ “top-down” account of law and his sophisticated “bottom-up” observations. For example, Thomas grounds human law’s authority in its …


Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson Aug 2006

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …


Public Services Meet Private Law, Michael I. Krauss Aug 2006

Public Services Meet Private Law, Michael I. Krauss

ExpressO

Public services are provided at various levels, and for various reasons, by governments to corporate and private citizens. Recently, an important movement in tort theory has sought to allow governments to recoup the cost of public services as tort damages from wrongdoers, especially from wrongdoers of the corporate variety. Much of the latest thrust in tort law, which consists of attorneys-general's suits against corporations, relies implicitly on a challenge to the common law's "free public services doctrine."

Recently, scholarship emanating largely from plaintiff-oriented sources has sought to appeal to free-market and law-and-economics scholars (who are often defense-oriented) by emphasizing the …


The Roberts Court: Year 1, Lori A. Ringhand Jul 2006

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.


Analysis Of Certain Aspects Of The “Long-Term Legal Strategy Project For Preserving Security And Democratic Freedoms In The War On Terrorism” Report In Light Of Customary International Law, Michael P. Hatchell Jul 2006

Analysis Of Certain Aspects Of The “Long-Term Legal Strategy Project For Preserving Security And Democratic Freedoms In The War On Terrorism” Report In Light Of Customary International Law, Michael P. Hatchell

ExpressO

No abstract provided.


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Defamation, Antidiscrimination And The Incredible Shrinking Actress, Amrita Mallik Jun 2006

Defamation, Antidiscrimination And The Incredible Shrinking Actress, Amrita Mallik

ExpressO

No abstract provided.


Would Banning Firearms Reduce Murder And Suicide? A Review Of International Evidence, Don B. Kates, Gary A. Mauser Jun 2006

Would Banning Firearms Reduce Murder And Suicide? A Review Of International Evidence, Don B. Kates, Gary A. Mauser

ExpressO

The world abounds in instruments with which people can kill each other. Is the widespread availability of one of these instruments, firearms, a crucial determinant of the incidence of murder? Or do patterns of murder and/or violent crime reflect basic socio-economic and/or cultural factors to which the mere availability of one particular form of weaponry is irrelevant?

This article examines a broad range of international data that bear on two distinct but interrelated questions: first, whether widespread firearm access is an important contributing factor in murder and/or suicide, and second, whether the introduction of laws that restrict general access to …


Who Will Redevelop Redevelopment?, Tim Kowal May 2006

Who Will Redevelop Redevelopment?, Tim Kowal

ExpressO

Although California’s redevelopment law is among the strictest in the nation, from a layperson’s perspective, redevelopment agencies (RDAs) appear to be no more obstructed from their projects in California as they would be in, say, Connecticut. This article addresses a sort of “tragedy of the commons” problem applied to redevelopment: If redevelopment powers are “over-harvested” such as to instigate serious political revolt against them, they will become barren and useless, and will no longer be available for the purposes for which they were intended and for which they are still needed. Even assuming that redevelopment is efficacious and necessary, redevelopment …


Review Essay: Radicals In Robes , Dru Stevenson May 2006

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …


The World Bank And The Ideology Of Reform In International Development Discourse, Joel M. Ngugi May 2006

The World Bank And The Ideology Of Reform In International Development Discourse, Joel M. Ngugi

ExpressO

Does the current development reform agenda, especially the one operationalized by the World Bank, is Ideological? If so, does it matter? These are the two questions that animate this article. In answering both questions in the affirmative, the article first demonstrates how the current development reform agenda is Ideological. It then discusses why and how it matters that the development reform agenda is Ideological. First, the article argues that Ideological rendering of the development reform agenda effectively weakens the ability of Third World countries to articulate their economic and foreign policies in ways that would benefit their citizenry the most. …


When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler May 2006

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

ExpressO

This article seeks to identify the ways in which federal actions can influence state regulatory choices in the context of environmental policy. The federal government may directly influence state policy choices by preempting state policies or by inducing state cooperation through the use of various incentives and penalties for state action. The federal government may indirectly, and perhaps unintentionally, influence state policy choices as well. Federal policies may encourage greater state regulation by reducing the costs of initiating regulatory action or by placing issues on state policy agendas. Federal regulation may also discourage or even “crowd-out” state-level regulatory action by …


Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp May 2006

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.


Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp Apr 2006

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As …


Standard Errors: How Budget Rules Distort Lawmaking, Timothy M. Westmoreland Apr 2006

Standard Errors: How Budget Rules Distort Lawmaking, Timothy M. Westmoreland

ExpressO

The article argues that the Congress’s budget process has invisibly influenced its legislative activities and structurally skewed its policy choices. The budgetary structure and tools as they affect lawmaking are largely unanalyzed. Until they are widely appreciated, they may often be random, inefficient, unrepresentative, and even deceptive. Review, critique, and change are overdue in any case. Inasmuch as the Congress is now, after a period of budget anarchy, debating how to refocus on the budget, this is a particularly good time for such activities.

The article also argues that additional structures are needed to “counter-balance” both the skewing that results …


Law In The Cultivation Of Hope, Kathryn R. Abrams, Hila Keren Mar 2006

Law In The Cultivation Of Hope, Kathryn R. Abrams, Hila Keren

ExpressO

In recent years scholars have begun to question the longstanding dichotomization of (legal) reason and the passions, and have offered significant understanding of the connection of law and the emotions. Much of this work, however, has been done within a fairly narrow ambit. This Article seeks to broaden this scholarship in two ways. First, it points to an unexplored relation between law and the emotions: the role of law in cultivating the emergence of emotions. And second, it moves beyond the negative emotions, and directs attention to positive emotions and their interplay with the law outside the criminal context. Following …


Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler Mar 2006

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …


When 2 Or 3 Come Together, Tracey L. Meares Mar 2006

When 2 Or 3 Come Together, Tracey L. Meares

ExpressO

This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago’s West Side. Strikingly, the local police district’s commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the “Chicago School” of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, …


Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal Mar 2006

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …


Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen Mar 2006

Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen

ExpressO

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture.

The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, …


The Foundations Of Federalism: An Exchange, Randall P. Bezanson Mar 2006

The Foundations Of Federalism: An Exchange, Randall P. Bezanson

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …


Arms Embargoes And The Right To Self-Defense In International Law , Matthew D. Vandermyde Mar 2006

Arms Embargoes And The Right To Self-Defense In International Law , Matthew D. Vandermyde

ExpressO

Over the past few decades, a number of nations have argued that the mandatory arms embargoes imposed against them violated their right to self-defense. In some cases the Security Council has responded by adjusting the embargo to exclude its application to arms destined for the government, such as in Rwanda and Sierra Leone. But in other cases the Security Council has rejected the argument and refused to lift or adjust the embargo, such as in Bosnia and Liberia. In December of 2005, Somalia put forth a similar line of argument, asking the Security Council to lift the arms embargo imposed …


The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez Mar 2006

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …


Auditing Executive Discretion, Mariano-Florentino Cuellar Mar 2006

Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility that results from limiting judicial review. Yet judicial review’s evisceration as a tool to restrain certain forms of discretion also makes it …


Halbert V. Michigan: The Application Of The Douglas-Ross Dichotomy In Constitutionalizing Indigency In States’ Appellate Court Processes, Omari O. Jackson Mar 2006

Halbert V. Michigan: The Application Of The Douglas-Ross Dichotomy In Constitutionalizing Indigency In States’ Appellate Court Processes, Omari O. Jackson

ExpressO

This note centers on a discussion of the recent U.S. Supreme Court decision in the Halbert v. Michigan case. This case addressed the issue of whether an indigent defendant is entitled to assistance of counsel by the state to file a leave for appeal. The Court, in a 6-3 decision, held that an indigent defendant is entitled to assistance of counsel when an appeal is available by leave of the court. Prior decisions by the U.S. Supreme Court have addressed the issue of assistance of counsel during the trial and appellate stage of litigation. This note will present a historical …


When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick Mar 2006

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …