Law Commons^™

Comparative Advantages Of The Supreme People’S Court Judgement(最高人民法院判决的比较优势), Meng Hou

Hou Meng

No abstract provided.

Liberdade, Ética E Direito, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Further than Ethics concieved as mere obedience, Republican Ethics expresses the idea of duty for freedom and Liberty. After Law concieved as only duty and imperative norms from power to the subjects, there is the possibility of a fraternal law, in new patterns. This article explores several ways in a new ethics and a new law paradigms, after the objective Roman Law and the subjective modern Law.

Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne

Péter Cserne

No abstract provided.

John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs

Stephen E. Sachs

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the …

Legal And Anthropological Research: 30 Years Of Experience In China（法律和人类学研究：中国经验30年）, Meng Hou

Hou Meng

No abstract provided.

Behavioral Public Finance, Edward J. Mccaffery

Edward J McCaffery

These are slides from a presentation to the Gruter Institute for Law and Behavioral Research, Squaw Valley Conference, May, 2008 (at which event Michael Jensen got me to agree to post these slides as a pdf on SSRN . . . ). The task is to give an overview of what I hope to be an emerging field of behavioral public finance. Behavioral finance, as per Barberis and Thaler 2003 (and others), consists of two parts: (1) individual level heuristics and biases, which can lead to sub-optimal (inconsistent) judgment and decision-making, and (2) institutional arbitrage mechanisms. In private finance and …

Comments On Liebman And Zeckhauser, Simple Humans, Complex Insurance, Subtle Subsidies, Edward J. Mccaffery

Edward J McCaffery

These are brief comments on an excellent paper by Jeffrey Liebman and Richard Zeckhauser, prepared for a conference sponsored by the Urban Institute and Brookings on tax and health care policy. Liebman and Zeckhauser summarize the complexities involved in making optimal health insurance decisions, and offer generally cautionary notes about conflating these with tax law (a theme of the conference). Most importantly, Liebman and Zeckhauser suggest a positive role for employers in health care and insurance decisions, as better setters or framers of choice sets—witness 401(k) plans. In this Commentary, I applaud Leibman and Zeckhauser’s general work and particular observation, …

Tercer Congreso Nacional De Organismos Públicos Autónomos, Bruno L. Costantini García

Bruno L. Costantini García

Tercer Congreso Nacional de Organismos Públicos Autónomos

"Autonomía, Reforma Legislativa y Gasto Público"

The Citation Of Civil Judicial Interpretations By The Verdicts(判决书对民事司法解释的引证), Meng Hou

Hou Meng

No abstract provided.

Annual Analysis Report Of Supreme People’S Court (2007)【最高人民法院年度分析报告（2007）】, Meng Hou

Hou Meng

No abstract provided.

Could Such A Classification Of Data Really Reflect The Status Quo Of Chinese Humanities And Social Sciences?（数据如此分组能否真实反映法学现状──评《中国人文社会科学学术影响力报告》“法学部分”）, Meng Hou

Hou Meng

No abstract provided.

Transnational Corporations (Tncs) And The Effective Implementation Of Social And Economic Rights: Current And Prospective Avenues, Analia Marsella

Analia Marsella Sende

In this Essay, I explain the role and impact of transnational corporations in the process of development and implementation of economic and social rights at a global scale and identify the solutions that I regard as plausible. I do so from an international human rights perspective that integrates both the legal and non-legal approaches. I concentrate on the international aspects of legalization, adjudication, and policy making. First, I analyze social and economic rights in the current context, the old and most recent understandings, and the challenges posed by the phenomenon of globalization together with the rising of corporations in the …

System Significance Of Law Citation（法律引证的制度意义）, Meng Hou

Hou Meng

No abstract provided.

The Trial Of Queen Caroline And The Impeachment Of President Clinton: Law As A Weapon For Political Reform, Daniel H. Erskine

Daniel H. Erskine

This article explores the calculated use of legal mechanisms to impact national politics and the effect such utilization had on accomplishing deliberate political reform. In answering why political actors use legal procedures as political weapons and whether such use is effective, this paper analyzes two historical examples to illustrate that law as political weapon is extremely successful in accomplishing political change. In the early 1800’s, England’s King sought to defrock his politically radical heroine Queen Caroline through the parliamentary mechanism of a Bill of Pains and Penalties, which caused a flourish of public criticism and call for political revolution. Public …

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

The Indeterminate Side Of Constitutions As Precommitment Strategies, Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a time-honored inquiry in American jurisprudence, an inquiry which continues to be invigorated by contemporary studies in Constitutional Law. It is an inquiry into the determinacy of the American Constitution as a legal text, taking into account that it was drafted and approved more than two hundred years ago with the purpose, arguably, to organize present and future political decision-making. Some contemporary authors claim that the discussion about the role of the Constitution is muddled, and that to acknowledge its authority does not necessarily entail a theory of constitutional interpretation. Furthermore, other authors have claimed that …

Droits De L'Homme, Droits Du Citoyen: Les Présupposés De La Jurisprudence Américaine Et Européenne, Gregory Lewkowicz

Gregory Lewkowicz

This paper proposes a comparative analysis of some rulings of the US Supreme Court and of the European Court of Human Rights. Reviewing cases related to international legal problems or using comparative legal reasoning, the paper suggests that the difference of attitudes between the two courts in human rights cases is embedded in the classical opposition between men and citizen.

On Conceptual Dichotomies And Social Oppression, Gila Stopler, Dana Freibach Heifetz

Gila Stopler

This article aims to expose the philosophical and cultural mechanisms, which allow some forms of western religion (in this case mainstream Christianity) to join hands with western capitalism in the oppression of women and of the needy. Focusing on the example of the US, this article claims that both mainstream Christian religion and capitalism perpetuate and entrench discrimination against women and the oppression of the needy through the use of the cultural/philosophical dichotomy between love and justice and its corollary dichotomy between private and public. Against this background, the second part of the article examines several notions of love and …

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Stephen E. Sachs

Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a "natural born Citizen" eligible to be president.

Same-Sex Marriage And Federalism, Nancy J. Knauer

Nancy J. Knauer

The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the …

Happy Law Students, Happy Lawyers, Nancy Levit, Douglas Linder

Nancy Levit

This article draws on research into the science of happiness and asks a series of interrelated questions: Whether law schools can make law students happier? Whether making happier law students will translate into making them happier lawyers, and the accompanying question of whether making law students happier would create better lawyers? After covering the limitations of genetic determinants of happiness and happiness set-points, the article addresses those qualities that happiness research indicates are paramount in creating satisfaction: control, connections, creative challenge (or flow), and comparisons (preferably downward). Those qualities are then applied to legal education, while addressing the larger philosophical …

What Is 'Private' Data?, Karen Mccullagh

Karen McCullagh

The development of a frontier-free Internal Market and of the so-called 'information society' have resulted in an increase in the flow of personal data between EU Member States. To remove potential obstacles to such transfers data protection legislation was introduced. One of the underpinning principles of Directive 95/46/EC is the protection of privacy. Yet, the legislation does not provide a conclusive understanding of the terms ‘privacy’ or ‘private’ data. Rather, privacy protection is to be achieved through the regulation of the conditions under which personal data may be processed. An assessment of whether, 10 years after the enactment of the …

The Miracle Of Generative Violence? René Girard And The Use Of Force In International Law, Gregor Noll

Gregor Noll

In this article, I apply Rene´ Girard’s theory of generative violence to the international law relating to the use of force. I argue that texts of international law make gestures of referral towards an immanent normativity on the fettering of divine violence. The means to this end is a form of sacrificial violence that seeks to promote the preservation and cohesion of the ‘international community’. The structuring of this violence through international law and its repeated staging reproduces the relationship of prophecy to miracle. Empirically, I draw mainly on excerpts from the 2006 US National Security Strategy.

Sacrificial Violence And Targeting In International Humanitarian Law, Gregor Noll

Gregor Noll

Drawing on the work of René Girard, his text inquires into incidental and lawful losses of civilians in the regulation of international humanitarian law as part of a symbolic order restraining violent conflict within communities. First, I inquire into central norms on targeting in IHL, explaining their internal inconsistencies. Second, I try to show that these inconsistencies can be explaining by applying Girard's theory on sacrificial violence.

The Asylum System, Migrant Networks And The Informal Labour Market, Gregor Noll

Gregor Noll

Governments attempting to regulate labour markets and control immigration are confronted with difficult questions. In the past, there was general agreement that the asylum system should not be exploited as a side entrance to the labour market. The two systems—asylum and labour market—were to be planned and maintained separately. But if migration is a prerequisite for asylum, does not increasingly stiffer migration control block escape for those under persecution? Prices for smuggling go up, and smugglers seek new routes, yet irregular migration continues, and the informal labour market flourishes. Here we must ask an irreverent question: is there any point …

Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush

David J. Arkush

This Article attempts to clarify legal thinking about emotion in decision making. It surveys evidence from psychology and neuroscience on the extensive role that emotion and related nonconscious cognitive processes play in human behavior, then evaluates the treatment of emotion in three legal views of decision making: rational choice theory, behavioral economics, and cultural cognition theory. The Article concludes that each theory is mistaken to treat emotion mostly as a decision objective rather than a part of the decision-making process and, indeed, to treat it as a force that mostly compromises that process. The Article introduces the view that emotion …

A Whale Of A Tale: Post-Colonialism, Critical Theory, And Deconstruction: Revisiting The International Convention For The Regulation Of Whaling Through A Socio-Legal Persepctive, Nick J. Sciullo

Nick J. Sciullo

This article is a critical interpretation of the indigenous whaling debate, which, although often discussed in legal academia, has received only passing critical attention. As a scholar in the critical theory/critical legal studies model, I am primarily concerned with the impact that law and debates about law have on divergent groups (racial, ethnic, gender, etc.). This article develops a criticism of the United States's postcolonial opposition to whaling, arguing, instead, for cultural relativism. The article indicts U.S. imperialism, and treatment of indigenous peoples, arguing for interdisciplinary analysis and a more keen appreciation for the voice of indigenous peoples. As I …

Progressive Era, Richard Adelstein

Richard Adelstein

A short interpretive summary of the period 1890 - 1914.

Human And Fundamental Rights And Duties In Portuguese Constitution. Some Reflections, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The Portuguese Constitution (1976) came after a period of 48 years of authoritarianism and a closed society, in which some happy few enjoyed great privileges while the great majority of people were charged with heavy duties So, by a very understandable "law of human nature", the constituent law givers could not reasonably impose constitutionally many obligations, in an autonomous way. As rights and duties are the twin sides of the same coin, the juridical formulation under the sign of rights also implies obligations, related to those same rights. This is kinder and more pleasant to do by a liberating Constitution...

El Derecho Natural, Historia E Ideologia, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Intentemos retomar algunos hilos sueltos de discursos dispersos y con una nueva mirada analítica, procuremos ver una realidad sutil y huidiza: ese derecho natural que parece silencioso en nuestros días, y más silencioso aún en los discursos psitacistas: tanto en los pomposos como en los pseudo-rigurosos.