Law Commons^™

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. The NY Times actual malice standard not only over-protects speakers, it denies a name clearing hearing to the target of defamatory speech. This is of increasing importance as new media, such as the internet, make it so easy to communicate false, defamatory statements about anyone, including in particular elected officials and candidates. President Obama was first elected to the U.S. Senate because of a sex scandal that tainted his only serious …

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

BETRAYING TRUTH: THE ABUSE OF JOURNALISTIC ETHICS IN MIDDLE EAST REPORTING By Kenneth Lasson Abstract In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has …

Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. The NY Times actual malice standard not only over-protects speakers, it denies a name clearing hearing to the target of defamatory speech. This is of increasing importance as new media, such as the internet, make it so easy to communicate false, defamatory statements about anyone, including in particular elected officials and candidates. President Obama was first elected to the U.S. Senate because of a sex scandal that tainted his only serious …

The Unnatural Disaster: Who Will Pay For The Next Major Hurricane, Bradley Bodiford

Bradley G. Bodiford

Since Hurricane Katrina, most state’s hurricane insurance programs have become increasingly political in an effort to control rapidly rising insurance rates. These legislative efforts often create their desired short-term effects, but only at the expense of harming millions of insurance customers in the long-term. Florida provides a perfect laboratory for examining the current crisis with its heavy coastal population and high vulnerability to hurricanes. By using a case study of a state with a more conservative hurricane insurance system, the article attempts to bridge the gap between the current system and the self-sustaining system. Specifically, the article proposes a glide …

Refining The Democracy Canon, Christopher Elmendorf

Christopher S. Elmendorf

This Essay responds to Professor Rick Hasen’s forthcoming article, The Democracy Canon. Hasen identifies an intriguing and until now largely unnoticed practice in many state courts--to wit, the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters' access to the polls and of rendering ballots eligible to be counted. Hasen defends this “pro voter” canon of interpretation and commends it to the federal courts. I argue that Hasen’s Canon cannot stand on the normative foundation he has poured for it, and that the federal courts’ adoption of the Canon would probably have significant costs (for example, …

Global Constitutional Lawmaking, Sungjoon Cho

Sungjoon Cho

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

Killing Capital Punishment In New Jersey: The First State In Modern History To Repeal Its Death Penalty Statute, Robert Martin

Robert J. Martin

This article examines how opponents of the death penalty were successful in lobbying and eventually achieving statutory repeal of New Jersey’s death penalty statute in December 2007. The primary goal of the article is to offer inspiration and guidance for similar efforts in the thirty-five states that still authorize capital punishment. In reviewing lessons learned from New Jersey, the article demonstrates that abolition proved both difficult and doubtful. Led by a small group of organizers and sympathetic legislators, the advocates of abolition faced multiple challenges. The article focuses special attention on their key strategic decisions: pursuit of both legislation and …

About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin Lozano

Benjamin J Lozano

In wartime states of emergency, the Supreme Court has historically held that a constitutional entitlement to habeas review is neither predicated on the length of detention nor the timeliness of due process, but rather is objective, concrete, and atemporal. The question of wartime habeas corpus has therefore always been an ontological question, exclusively determined by the corresponding categories of subject and space. However, this paper argues that a surreptitious shift in methodology buried inside the ostensible precedent of Boumediene v. Bush should not be overlooked, for the ruling signals the inaugural moment whereby the length and indefinite duration (i.e. the …

Ldeq Executive Philosophy Under Secretary Hal Leggett: Team Building Politics Vs. Policy, Beau James Brock

Beau James Brock

A powerpoint overview of the LDEQ Leggett Adminstration's policy agenda and its mission to overcome inherent political bureaucracy.

Will The Supreme Court Send The Vra’S Biggest Sunset Provision Into The Sunset?: Northwest Austin Municipal Utility District Number One And The 2006 Reauthorization Of Section Five Of The Voting Rights Act, Cameron Eubanks

Cameron W Eubanks

The D.C. Circuit correctly decided Northwest Austin Municipal Utility District Number One v. Mukasey. The court subjected the 2006 reauthorization of § 5 of the Voting Rights Act to the rational and appropriate test announced in South Carolina v. Katzenbach. Under this test the court found that Congress had a rational basis to extend § 5 based on evidence of continued racial discrimination in voting. On review, the Supreme Court will uphold the § 5 reauthorization in spite of the congruent and proportional test announced in City of Boerne v. Flores which is used to review enactments passed pursuant to …

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower

The ‘Growth Budget’: Disciplined And Responsible Government Spending For Future Prosperity, Neil H. Buchanan

Neil H. Buchanan

This essay considers how spending by the federal government can improve long-term living standards. The familiar concept of “capital budgeting” separates government expenditures into two categories: purchases of goods and services for current consumption that provide no long-term payoff (“operating expenditures”), and purchases of productive capital goods that do generate long-term payoffs (“capital expenditures”). Within that framework, I advocate expanding the range of possible public investments that would count as capital expenditures to include those that do not produce physical infrastructure but that nevertheless provide long-term economic benefits. Adding these items – such as spending on basic research, health care, …

Nation Could Use Dose Of Meritocracy, John Capowski

John J. Capowski

No abstract provided.

The World Trade Constitutional Court, Sungjoon Cho

Sungjoon Cho

The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the …

Beyond The Berle And Means Paradigm: Private Equity And The New Capitalist Order, Stephen Diamond

Stephen F. Diamond

The rise of private equity funds represents a new stage in capitalism. These funds combine financial resources and capital markets expertise with detailed operational knowledge of the operations of takeover targets to maximize the creation and expropriation of value on behalf of investors. Their significant size and aggressive buyout record suggests that we may be witnessing the confirmation of Michael Jensen's 1989 prediction, made in the midst of the first wave of leveraged buyouts, of the “eclipse of the public corporation.” Critics of private equity share a view of the corporation rooted in a decades old characterization by Berle and …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Why So Slow: A Comparative View Of Women's Political Leadership, Paula Monopoli

Paula A Monopoli

No abstract provided.

Racial Exhaustion, Darren Hutchinson

Darren L Hutchinson

This Article examines historical and contemporary race discourse contained in political and juridical sources in order to illustrate how opponents to racial egalitarian measures have frequently contested such policies on the grounds that they are redundant, unnecessary, or too burdensome or taxing. Racial exhaustion rhetoric has operated as a persistent discursive instrument utilized to contest claims of racial injustice and to resist the enactment of racial egalitarian legislation. Racial exhaustion rhetoric has enjoyed particular force during and immediately following periods of mass political mobilization by antiracist social movements and institutional political actors, and it retains potency in contemporary racial discourse. …

The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin

Robert Justin Lipkin

Wealth V. Democracy: The Unfulfilled Promise Of The Twenty-Fourth Amendment, David A. Schultz

David A Schultz

The adoption of the Twenty-Fourth Amendment banning poll taxes in federal elections was intended to protect franchise rights and increase voter turnout. However, since its adoption and initial use in Harman v. Forssenius, it has yet to be successfully invoked to invalidate any practice, most recently voter photo IDs. This article seeks to resurrect the Twenty-Fourth Amendment and to make the case for a broader interpretation of it. Specifically, the Article seeks to disconnect the poll tax from a narrow reading of its legacy during the Jim Crow era when its primary purpose was to disenfranchise African-Americans. Instead, the poll …

More Private Equity, Less Government Subsidy, And More Tax Efficiency In Urban Revitalization, Roger M. Groves

Roger M. Groves

MORE PRIVATE EQUITY, LESS GOVERNMENT SUBSIDY, AND MORE TAX EFFICIENCY IN URBAN REVITALIZATION: Modeling Profitable Philanthropy and Investment Incentives In hopes of revitalizing depressed urban areas, US tax policy has been to use tax credits as a major incentive to induce private equity re-investment. But those give away subsidies to private investors have failed to have transformative effects, and come at a price in the billions to the public treasury. This article seeks a shift in the tax policy paradigm to increase the private equity investment, while reducing tax subsidy dependence. For the philanthropic urban investor, the short term incentive …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

Through The Looking Glass: The Politics Of Estate Tax Reform, Edward J. Mccaffery

Edward J McCaffery

This brief article summarizes an argument that the estate tax reform or repeal debate has always been about money: not the government’s money from the tax, which is modest at best, but the politicians money from campaign contributions elicited to retain or repeal the tax. The article uses that theory to predict likely short term legislative developments.