Law Commons^™

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Daniel L. Brenner

ABSTRACT: The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for “network neutrality” or “nondiscrimination” assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation -- a key assumption of some advocates. The article analyzes three characteristics that hobble the FCC, the likeliest federal agency to provide prescriptive rules. First, the record for the …

Turkish Cross-Border Operations Into Northern Iraq: International Law And Use Of Force Analysis, Charles Bowers

Charles Bowers

No abstract provided.

A Swing State Voter’S Epiphany, Erin Ryan

Erin Ryan

This op-ed forecasts redemption for the fractured American electorate based on deep election-day kindnesses in politically divided southeastern Virginia.

Northwest Austin Municipal Utility District Number One V. Mukasey: The Supreme Court's Opportunity To Examine And Clarify The Law Surrounding Section 5 Of The Voting Rights Act, Matthew C. Dahl

Matthew C. Dahl

No abstract provided.

From “Blood Diamond” To “Blood Coltan”: Should International Corporations Pay The Price For The Rape Of The Dr Congo?, Maheta Matteo Molango

Maheta Matteo Molango

This paper discusses the role of multinational corporations, and in particular US companies, in fueling two devastating civil wars and contributing to the climate of tension currently existing in Africa’s Great Lakes’ region. The discussion focuses on the exploitation of a relatively unknown mineral called “coltan,” indispensable for the production of cell phones, laptops and many other electronic devices. My analysis offers readers several elements that are essential to understanding the close relationship between the exploitation of Congolese minerals, international companies and rebel groups operating in the region. From a legal point of view, I have attempted to explore some …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Eloquence And Reason: Creating A First Amendment Culture, Robert L. Tsai

Robert L Tsai

This book presents a general theory to explain how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. "Eloquence and Reason" employs the First Amendment as a case study to illustrate that liberty is achieved through the formation of a common language and a set of organizing beliefs. The book explicates the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are best understood as the results …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Can State Health Reform Initiatives Achieve Universal Coverage? California's Recent Failed Experiment, Susan A. Channick

Susan Channick

No abstract provided.

The “Political Marketplace” Metaphor From A Labor-Centric Perspective, Thomas Tso

Thomas Tso

The use of the political marketplace analogy is common in the academic literature on the law of democracy. The analogy between a consumer and voter lies at the heart of this analogy. This article presents an alternative vision of the marketplace analogy. Instead of a consumer-voter, this article presents a marketplace framework that relies instead on an analogy between laborer and voter. Through the use of judicial opinions, discussions in labor law, labor economics, and political science, this article presents an alternative political marketplace framework with implications for how we use the marketplace analogy in policy and legal contexts.

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Nasty As They Wanna Be, Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Constitution By Compromise, Howard Schweber, Amnon Cavari

Howard Schweber

The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and …

A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson

Chad Emerson

No abstract provided.

The New York City Campaign Finance System: A Model System That Violates State And Federal Law, Daniel A. Katz

Daniel A. Katz

The New York City campaign finance system was amended in 2007 from a voluntary program into a mandatory regulatory scheme that is applicable to all candidates. Because the requirements of the law can no longer be avoided, the law is in conflict with provisions of state law that govern local elections. A United States Supreme Court decision, Davis v. FEC, handed down in June of 2008 has further undermined the validity of the New York City campaign finance system. The decision held that asymmetrical contribution limits applicable to candidates based on the candidate’s use of their own wealth violate the …

Reporting On Palin: Negotiations In Political Theater, Erin Ryan

Erin Ryan

Fairness And The Distribution Of Primary Goods, Nathan W. Dean

Nathan W. Dean

I consider whether any one of the schemes of distributive justice envisioned by John Rawls, Robert Nozick, or G.A. Cohen is truly fair. By means of a close and critical reading of their work on distributive justice, I conclude that their schemes of distributive justice in some instances fail to correct for elements of unfairness and at other times introduce unfairness in the furtherance of other largely unacknowledged ends. More specifically, I (1) describe the ways in which Rawls, Nozick, and Cohen fail to show us what a fair scheme of distributive justice would look like, (2) sketch what I …

Dreams And Images: The Roles Of Particularism And Principlism In The Law, R George Wright, Faith A. Knotts

R. George Wright Professor

The term ‘particularism’ is rarely used in connection with the law, but the idea of ‘particularism’ itself is of great importance throughout the law. Particularism de-emphasizes the roles of principles, rules, standards, policies, formulas, and tests in the law. Instead, particularism emphasizes vivid and concrete analogies, hypotheticals, stories, images, instructive fables, parables, particular incidents, myths and legends, evocative dreams, and similar sorts of narratives.

This Article establishes the contrast between particularism and its opposite, principlism. The Article notes the contrast between these two approaches to the law, particularly in the vital area of the historical legal battle over slavery, segregation, …

Cracking, Packing, And Shacking: Resolving Gerrymandering Disputes At The Ballot Box?, Samuel B. Batkins

Samuel B Batkins

Political gerrymandering has marked American democracy since its inception, but only recently have courts addressed this inherently political issue. Plaintiffs challenging gerrymandered redistricting plans initially claimed that political gerrymandering violated the Republican Form of Government Clause in Article IV of the Constitution; yet over one hundred years later, the courts decided that the Equal Protection Clause would yield more consistent results. However, the partisan process of political gerrymandering has continued.

Davis v. Bandemer was the first attempt to create a workable standard for aggrieved plaintiffs. First, it required a plaintiff to demonstrate that a gerrymandered redistricting map had the intent …

The Aumfai, Resolution 1790, Sofas, And Base Agreements: How Does The U.S. Stay In Iraq?, Eric G. Roscoe

Eric G. Roscoe

This Comment will address the authorization problems that might arise with the deployment of troops to Iraq. The current congressional authorization permits the U.S. to operate in Iraq pursuant to Security Council Resolution 1790. Resolution 1790 will expire in December of 2008 and Iraq has no desire to renew that resolution. The Bush administration is currently negotiating a bilateral Status of Forces Agreement (“SOFA”), in order to provide the U.S. international authorization for troops in Iraq. This Comment argues, counter to the administration, that the U.S. should pursue the negotiation of a pseudo-base agreement with Iraq in addition to the …

The Challenges Of Democratic Consolidation In Africa, Okechukwu Oko

Okechukwu Oko

This paper, using Nigeria as a case study, examines the challenges of democratic consolidation in Africa. It will critically and objectively identify the problems and challenges of democratic consolidation in Africa and offer suggestions that will move Africa further along the path of constitutional democracy. It proceeds from the basic proposition that Africans’ thirst for genuine democracy is at present unslaked and perhaps unslakeable under the current circumstances in Africa. Democracy is off kilter in Nigeria, and indeed, most parts of Africa and appears to be spiraling over the edge into dictatorship, and perhaps even social disorder, fatally assaulted by …

The Institutional Logic Of Preventive Crime, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe

Matthew W. Wolfe

United States Supreme Court Chief Justice John Roberts describes the American judiciary as the envy of other constitutional democracies. But in one respect, the judiciary apparently trails others: judicial pay. Citing higher salaries of judges in other countries, Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito have all argued that inadequate judicial pay leads to a decline in judicial performance and quality. Judicial pay advocates apparently make these comparisons to emphasize that low judicial salaries “threaten” judicial quality and independence or, alternatively, that high judicial salaries “ensure” quality and independence. But the argument is incomplete, relying upon …

Voter Turnout: From Cost To Cooperation, Jason B. Marisam

Jason B Marisam

Political scientists have repeatedly concluded that state efforts to increase voter turnout will continue to flounder, so long as those efforts remain focused on lowering the already low cost of voting. Accordingly, this Article argues that future efforts to achieve consistently higher and widespread turnout among all demographics must consider other determinants of voter behavior. The primary goal of the Article is to craft a framework based on a thorough understanding of voter motivation and behavior that helps conceptualize and analyze public efforts to increase voter turnout. The framework fills a gap in the literature by drawing from a range …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Nudging For Liberty: Values In Libertarian Paternalism, Michael S. Mcpherson, Matthew A. Smith

Michael S. McPherson

In their recent book, Nudge, Richard Thaler and Cass Sunstein argue persuasively that default rules, framing effects, etc., can be used to promote people's welfare. Through a range of empirical examples, we show that it is possible and often preferable to promote values other than welfare. For example, in certain situations default rules can be used to promote people’s exercise of liberty, the equality between citizens, or any other number of values. The core of the paper is showing that these examples do not devolve into welfare, and thereby enhancing the range of options open to policy makers.