Law Commons^™

Command Responsibility In The International Tribunals: Is There A Hierarchy?, Adria De Landri

Adria De Landri

No abstract provided.

A Health Care Autopsy, Marc Gans

Marc Gans

This paper analyzes each of the factors responsible for the rapid rise in health care spending in this country. This includes an in-depth analysis of prescription drug expenditures, which has been the fastest growing component of health care costs. Lastly, this paper will address whether there is anything particularly unique about health care spending in California.

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

Steven D. Smith

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Public Choice Concepts And Applications In Law, Maxwell Stearns, Todd Zywicki

Maxwell L. Stearns

This is the only course book specifically designed to instruct law students in the discipline of public choice. The book provides a comprehensive, but nontechnical, overview of interest group theory, social choice theory, and game theory (along with elementary price theory), and ties these concepts to a wide range of topics in both public and private law. The book contains chapters devoted to each set of methodological tools and to specific institutional settings: legislatures, courts, executive branch (and bureaus), and constitutions.

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace

Nicholas Buccola

This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the …

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Understanding Csr: An Empirical Study Of Private Self-Regulation, Benedict Sheehy

Benedict Sheehy

Abstract: The article is a study of an important burgeoning form of regulation—private self-regulation—in the area of Corporate Social Responsibility (CSR). Rather than taking a purely theoretical approach or a social scientific study relying publicly reported data, the article addresses the issue by way of interview based case studies. As a study in regulation it clarifies the difference between various types of self-regulation, trade associations’ codes as private self-regulation and government sponsored self-regulation. This distinction hampers efforts to understand the important aspects of motivation and compliance. This study provides empirical examination of compliance in private self-regulation. Given the impact and …

Originalism And The Aristotelian Tradition: Virtue’S Home In Originalism, Lee Strang

Lee J Strang

A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World.

From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Who Are Refugees?, Matthew Lister

Matthew J. Lister

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the …

The Benefits Of Capture, Dorit Reiss

Dorit R. Reiss

Observers of the administrative state warn against “capture” of administrative agencies and lament its disastrous effects. This article suggests that capture has another side: important benefits that should not be underestimated. Capture is a situation in which a regulated industry exerts a substantial amount of influence over the agency in question, leading to industry involvement in creation and enforcement of regulation. Scholars documenting the phenomenon have highlighted a number of negative results – lax enforcement of regulation; weak regulations; illicit benefits going to industry. However, not only is this picture incomplete, it is in substantial tension with another current strand …

Individual Mandates: A Founder-Approved Means Under The Necessary And Proper Clause, Eli Alcaraz

Eli A Alcaraz

The Affordable Health Care Act’s (“ACA”) individual mandate requiring most Americans to purchase healthcare was challenged as unconstitutional even before the ACA was passed. Challengers to the ACA assert that the federal government has never been allowed to force an individual to make a purchase from a private entity and that the ACA’s requirement that an individual do so is unconstitutional. This Comment takes issue with those asserting that an “individual mandate” is a contemporary invention and unconstitutional. As a matter of fact, there is at least one historical example where the federal government has forced individuals to makes purchases …

The Federal Government’S Ability To Respond To A Major Terrorist Attack: Issues, Concerns And Inadequacies In The Disaster Law Construct, M. Jonathan Gil

Michael J Gil

The cunning and zeal of the world’s terrorist organizations require that this country prepare itself for large-scale disaster relief operations. As it stands, the Stafford Act, as well as federal and local government policies are lacking. The federal government has floundered in past situations, and Americans have died as a result. In order to remedy these shortcomings, the government should take two different stances: hands on, and hands off. The hands-on approach is designed to address the shortfalls of past disaster response and the current system, while the hands-off approach is designed to allow the entire relief operation to operate …

The Interplay Between U.S. Statutory Rights And Public Policy Under The Faa And New York Convention In International Disputes, Daniel Schwarz

Daniel M. Schwarz

The “prospective waiver” doctrine allows U.S. courts to invalidate or sever arbitration clauses in otherwise valid agreements to arbitrate where arbitrating under foreign law would prevent a U.S. party from seeking relief under a U.S. statute. The loss of this opportunity is said to affront U.S. public policy. This paper acknowledges that courts’ application of this idea has resulted in the need for a more fundamental revisiting of the question of whose law should be “mandatory” in international arbitration. But more specifically, this paper proposes appropriate sets of factors for pre-arbitration courts, arbitrators, and post-arbitration enforcement courts to consider in …

Regulating The Marketplaces Of Political And Economic Ideas, Christopher S. Ford

Christopher S Ford

Ever since Justice Holmes’ famous dissent in Abrams v. United States, First Amendment jurisprudence has labored under the metaphor of a ‘marketplace of ideas.’ The government must abstain from regulating this market, courts and commentators have argued, to best ensure healthy and free competition among ideas. The Supreme Court has frequently relied on this metaphor when evaluating claims under the First Amendment, and did so prominently when deciding the recent case of Citizens United v. F.E.C. Yet the sweeping majority opinion by Justice Kennedy and strident dissent by Justice Stevens advance two fundamentally different ideas of how the marketplace of …

Painting Beyond The Numbers: The Art Of Providing Inclusive Law School Admissions To Ensure Full Representation In The Profession, Paula Lustbader

Paula Lustbader

The issue of increasing diversity in the profession and the law schools is still timely. In his column for the March 2011 American Bar Association Journal, the ABA President calls for more “to be done to make the legal profession more fully reflect the communities it serves.” In addition, the Society of American Law Teachers is currently preparing to proposal to make to the ABA Accreditation Committee regarding the use of Law School Admission Tests scores and minimum Bar Passage Rates requirements. Many law schools and other institutions of higher learning are wrestling with the issue of diversity and admissions …

First Amendment Architecture, Marvin Ammori

Marvin Ammori

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role of judicial doctrines in ensuring the availability of spaces for speech. Indeed, when scholarship addresses doctrines that are explicitly concerned with speech spaces such as public forums and media or Internet forums, it generally marginalizes these doctrines as “exceptions” to standard First Amendment analysis. By overlooking or marginalizing these decisions, scholarship has failed to explicate the logic underlying important doctrinal areas and what these areas reveal about the First Amendment’s normative underpinnings.

This Article adopts a different interpretive approach. It …

Judging, Expertise, And The Rule Of Law, Chad M. Oldfather

Chad M Oldfather

Though we live in an era of hyper-specialization, the judiciary has for the most part remained the domain of generalists. Specialized courts exist, however, and commentators regularly claim that further judicial specialization is desirable or inevitable. Yet recent years have witnessed the beginning of a backlash against the increasing division of intellectual labor, such that it is appropriate to question the merits of judicial specialization. This article engages the existing literature on judicial specialization in two ways. First, by demonstrating that the question of judicial specialization is considerably more complex and contingent than is typically depicted. We must, for example, …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Age Of Electoral Majority, Vivian E. Hamilton

Vivian E. Hamilton

Multidimensional Governance And The Bp Deepwater Horizon Oil Spill, Hari Osofsky

Hari Osofsky

This Article explores the governance challenges posed by the BP Deepwater Horizon oil spill, and proposes strategies for developing more inclusive, responsive institutions to help meet them. It begins by analyzing the incident through five core dimensions—vertical, horizontal, direction of hierarchy, cooperativeness, and public-private—to demonstrate the multi-level, multi-actor interactions taking place in offshore drilling and oil spill regulation. It then explains the ways in which the complex interactions in these dimensions translate into four core governance challenges: scientific and legal uncertainty, simultaneous overlap and fragmentation, the difficulties of balancing efficiency and inclusion, and inequality and resulting injustice. The Article next …

Originalism As Popular Constitutionalism?: Theoretical Possibilities And Practical Differences, Lee Strang

Lee J Strang

The common perception is that originalism and popular constitutionalism are incompatible. Supporting this perception is the widely-shared opinion that most advocates for popular constitutionalism are liberal while most originalists are conservative-libertarian. Not only is this the perception, it has a basis in reality. Looking at the names of leading originalists and popular constitutionalists reveals that there is significant overlap between originalism and conservatism-libertarianism, and between popular constitutionalism and liberalism.

In this Article, I argue that the common perception that originalism and popular constitutionalism are incompatible is mistaken. Instead, I show that there is no uniquely correct answer to the question …

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Lynch, Michele Mathes, Nadia Sawicki

Nadia N. Sawicki

Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility that …

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Nadia N. Sawicki

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first …