Law Commons^™

Missouri V. Holland's Second Holding, Carlos Manuel Vazquez

Missouri Law Review

This legitimate federalism problem, however, does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland's edges. The solution I propose is far narrower than those proposed by Bradley and Rosenkranz, and unlike their proposed solutions, it is consistent with the Founder's design. I argue that the power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to implement such …

The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, And The States, Sara C. Bronin

Cornell Law Faculty Publications

Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities' long-held power over land use regulation. In the authors' view, this quiet revolution would occur when policymakers and the public recognized that certain problems - like environmental destruction - were too big for localities to handle on their own. Although the quiet revolution has not yet occurred, this Article suggests that it will, and should, occur alongside the ever-growing green building movement. This movement presents practical and ideological challenges to our current system of regulating land use. This Article …

Daniel Defoe And The Written Constitution, Bernadette Meyler

Cornell Law Faculty Publications

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as …

Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz

Cornell Law Faculty Publications

Do members of the House of Representatives have a constitutional right to resign their seats? This Article uses that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of senators, presidents, and vice presidents, but, curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation when there is …

Foreword, Margaret E. Mcguinness

Missouri Law Review

Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of …

Federalism And Horizontality In International Human Rights , Margaret E. Mcguinness

Missouri Law Review

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism. The human rights regime is largely structured …

Direct Threat Defense Under The Ada: Posing A Threat To The Protection Of Disabled Employees, The, Rene L. Duncan

Missouri Law Review

The Americans with Disabilities Act was passed with intentions of eliminating stereotypes and fear towards disabled individuals and their ability to function and contribute to society. In the employment context, the Act will not permit an employer to refuse to hire an individual solely because of that person's disability. However, it will permit the employer to defend such action when limitations caused by an individual's disability rise to the level of a direct threat to the safety of others. When an employer raises such a defense, circuit courts are split as to whether the burden of proving the existence or …

Resurrecting Missouri V. Holland, Peter J. Spiro

Missouri Law Review

This brief essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably, the decision is no longer …

Internationalism Of American Federalism: Missouri And Holland, The, Judith Resnik

Missouri Law Review

This Earl F. Nelson Lecture, given at the University of Missouri School of Law's Symposium, Return to Missouri v. Holland: Federalism and International Law, developed from and overlaps with a series of articles including Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008) (with Joshua Civin and Joseph Frueh); Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards'" ofAggregate Translocal Actions, 156 U. PA. L. REv. 1929 (2008); Law as Affiliation: "Foreign " Law, Democratic Federalism, and the …

Split On Sanctioning Pro Se Litigants Under 28 U.S.C. 1927: Choose Wisely When Picking A Side, Eighth Circuit, The, Kelsey Whitt

Missouri Law Review

In recent years, an increasing number of pro sel litigants have appeared in federal courts. Between October 2003 and September 2004, federal district courts had over 20,000 cases filed by pro se litigants. In fact, "pro se litigants appeared in thirty-seven percent of all cases.' The increase of pro se litigation is attributed to several factors, including the rising cost of litigation combined with the decrease of funding for legal services, the negative public perception of lawyers, and the rise of do-it-yourself legal resources. Once pro se litigants enter the federal court system, their presence multiplies the resources spent by …

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

Missouri Law Review

In this brief Essay, then, I wish to engage in a thought experiment by looking at both federalism and international law through a pluralist rather than a sovereigntist lens. First, I summarize the pluralist literature and some of its core insights and suggest that scholars interested in international law (and its relationship with domestic law) would do well to consider this literature. Second, I provide a few examples of jurisdictional redundancy operating in the transnational, international, and federalist realm and show how the existence of multiple fora can both empower voices that might otherwise be silenced and effect changes of …

Tiebout Goes Global: International Migration As A Tool For Voting With Your Feet, Ilya Somin

Missouri Law Review

In this article, I make a tentative effort to plug this hole in the literature. I suggest that the benefits of international foot voting may well be much larger than those of free movement within national borders. Part II briefly summarizes the theory of foot voting and its potential benefits. I focus particularly on the use of exit rights as a form of political participation by which migrants can more effectively choose the public policies under which they live. Crucial benefits of political participation through exit rights include the matching of public policy to diverse preferences, the creation of an …

First Amendment And Specialty License Plates: The Choose Life Controversy, The, Stephanie S. Bell

Missouri Law Review

This summary will examine the models of specialty license plate creation, the history of "Choose Life" specialty license plates, the litigation surrounding the controversy, and the two differing standards courts have used to distinguish government and private speech: the Fourth Circuit's four-factor test and the Johanns test.

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Missouri Law Review

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests. This article draws on the …

Cumulative Subject Index For Volumes 72-73

Missouri Law Review

Cumulative Subject Index for Volumes 72-73

The Urgent Reawakening Of The Assyrian Question In An Emerging Iraqi Federalism: The Self-Determination Of The Assyrian People, Paul A. Isaac

Northern Illinois University Law Review

This article introduces the contemporary significance of the Assyrian Question--the longstanding inquiry over the rights of a small religious and ethnic minority in Iraq. Recently, Assyrians have been violently targeted and disproportionately driven from postwar Iraq in massive numbers, threatening to obliterate their presence from their ancestral homeland forever. Addressing their legal rights, the author argues that Assyrians are an indigenous people under international law and are, therefore, entitled to the full exercise of their political, social, and cultural self-determination. The article surveys the international law of self-determination alongside provisions of Iraqi law that have been created to protect Assyrians. …

Behavioral Criminal Law And Economics, Thomas S. Ulen, Richard H. Mcadams

Public Law and Legal Theory Working Papers

A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.

Naturalizing Jurisprudence: Three Approaches, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

A Summary Reflection On Legal Education, Robert A. Pascal, Olivier Moreteau

Louisiana Law Review

No abstract provided.

Book Reviews, Bart Bechtel, Jeffrey Ahn

Journal of Strategic Security

Fair Play: The Moral Dilemmas of Spying. By James M. Olson.

The Corporate Spy: Industrial Espionage and Counterintelligence inthe Multinational Enterprise with Case Studies (Abridged Version) by Edward M. Roche.

Table Of Contents

BYU Law Review

No abstract provided.

Clark Memorandum: Fall 2008, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum

• A Law upon Which All Blessings are Predicated (David A. Thomas)
• The Lawyer as Peacemaker (Matthew B. Durrant)
• Women in the Law (Nan Barker)
• With Charity for All (Matthew S. Holland)

Vol. 29, No. 1, Fall 2008: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

While The Government Fiddled Around, The Big Easy Drowned: How The Posse Comitatus Act Became The Government's Alibi For The Hurricane Katrina Disaster, Candidus Dougherty

Northern Illinois University Law Review

This article analyzes how the government's blame of the Posse Comitatus Act (PCA) for its late response to the Hurricane Katrina disaster was misplaced. In Part II, the author discusses the history of the Posse Comitatus Act, including a summary of some of its many judicial and congressional expansions. In Part III, the author applies the PCA to the Hurricane Katrina disaster to show that, under its proper application, the PCA does, in fact, permit the lawful use of the military for humanitarian purposes. Based on this analysis, the article concludes that we should focus our efforts less on the …

An Argument For A Return To Plessy V. Ferguson: Why Illinois Should Reconsider The Doctrine Of "Separate But Equal" Public Schools, Rick Guzman

Northern Illinois University Law Review

This Comment analyzes the steady erosion of the 1954 landmark Brown v. Board of Education case. Specifically, it argues that the millions of poor and overwhelmingly minority school children who are attending 99% single-race schools might actually have access to better teachers and more adequate educational funding under the long-abandoned principle that "separate" schools must be "equal," by some measure, than such students fare under today's watered down interpretation of the Brown case. Illinois, which ranks dead last in school-funding equality as measured by disparity in per pupil expenditures, is examined in depth. The Comment provides extensive statistical analysis and …

Spoliation Of Electronically Stored Information, Good Faith, And Rule 37(E), Andrew Hebl

Northern Illinois University Law Review

The Federal Rules of Civil Procedure were amended effective December 1, 2006 to address concerns about discovery of electronically stored information. One of those amendments, Rule 37(e), created a safe harbor for parties who destroy relevant information as a result of the good faith, routine operation of their electronic storage systems. The rule recognizes the enhanced difficulty of preserving relevant information in the electronic context due to the automatic operation of electronic storage systems and the necessary deletion and modification of such systems' contents from time to time due to storage constraints and other technological limitations. The rule's good-faith requirement …

Legal Beagle Blog (November 2008), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Cotenants Trumping Cotenants: The Eighth Circuit Takes A Diverse Stance On Cotenants' Authority Under The Fourth Amendment, Benjamin M. Johnston

Missouri Law Review

Reluctantly, John Adams mailed the envelope addressed to his wife, Abigail, knowing the contents could bring about his death. This letter, mailed to his "dear friend," contained a description of his pleas for independence to the Continental Congress, a description that if located by the British, would most certainly subject him to charges of treason. Immediately after Mr. Adams dispatched his letter, he was approached by a British intelligence officer requesting to review the letter. Mr. Adams denied the officer's request and sent him on his way. Later, when the letter arrived to the unsuspecting Abigail, it was accompanied by …

Title Page

Louisiana Law Review

No abstract provided.

Volume Contents

Louisiana Law Review

No abstract provided.