Law Commons^™

Comments On Law And Versteeg's 'The Declining Influence Of The United States Constitution', Tom Ginsburg, Zachary Elkins, James Melton

Articles

No abstract provided.

Indigenous Peoples And Epistemic Injustice: Science, Ethics, And Human Rights, Rebecca Tsosie

Washington Law Review

This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly …

Historical Gloss: A Primer, Alison Lacroix

Articles

No abstract provided.

Asymmetries And Incentives In Plea Bargaining And Evidence Production, Saul Levmore, Ariel Porat

Articles

Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, …

Georgia's New Evidence Code: After The Celebration, A Serious Review Of Anticipated Subjects Of Litigation To Be Brought On By The New Legislation, Matthew E. Cook, K. Todd Butler

Mercer Law Review

As January 1, 2013 approaches, the Georgia Bar is anticipating the new Georgia Evidence Code (GEC), House Bill 24, due to take effect on that day. Several authors have canvassed the particular changes the GEC brings to the existing Georgia Rules, of Evidence, as well as the differences between the new GEC and the Federal Rules of Evidence (FRE). Those articles are commended for your reading, as they drive not only lawyers' courtroom presentation but also their trial preparation. Rather than rehashing the changes the GEC brings, this Article will address the abbreviated history preceding the passage of House Bill …

Business Associations, W. Carter Bates Iii, Kort D.L. Peterson

Mercer Law Review

This Article surveys developments in Georgia law in the area of business associations, including corporations, partnerships, limited liability companies, and joint ventures. The first portion of this Article reviews noteworthy published cases addressing issues of first impression from the Georgia Court of Appeals, the Georgia Supreme Court, federal district courts of Georgia, and the United States Court of Appeals for the Eleventh Circuit, issued from June 1, 2011 through May 31, 2012. The second portion of this Article summarizes additional cases of note that do not involve issues of first impression. The third portion of this Article discusses relevant legislation …

Legal And Policy Implications Of The Perception Of Property Rights In Catch Shares, Mark Fina, Tyson Kade

Washington Journal of Environmental Law & Policy

Catch shares are a fishery management strategy under which persons are allocated exclusive access to specific portions of the total allowable catch of a fishery. Proponents of catch share management argue that these programs allow for more efficient management of annual catch limits and mitigate the negative biological and economic impacts associated with other management programs. Because of the exclusivity of their allocations, catch share programs have been characterized by their opponents as privatizing the public fisheries resource and granting catch share holders a property right to fish. However, case law suggests that a court is unlikely to conclude that …

Leopold's Last Talk, Eric T. Freyfogle

Washington Journal of Environmental Law & Policy

During the last decade of his life, Aldo Leopold (1887–1948) delivered more than 100 conservation talks to various popular, professional, and student audiences. In them, he set forth plainly the central elements of his conservation thought. By studying the extensive archival records of these talks one sees clearly the core elements of Leopold’s mature thinking, which centered not on specific land-use practices (good or bad), but instead on what he saw as deep flaws in American culture. Leopold’s sharp cultural criticism—more clear in these talks than in his lyrical, muted classic, A Sand County Almanac—called into question not just …

Oil Development In Anwr: The Precautionary Principle Is Compatible With The Fish And Wildlife Service's Statutory Mandate, Trisna Tanus

Washington Journal of Environmental Law & Policy

The potential for oil production in the Arctic National Wildlife Refuge (ANWR) coastal plain, otherwise known as the 1002 Area, is significant, with a current value of $770 billion. Yet, there are considerable knowledge gaps and disagreements over the environmental impacts of oil development in ANWR. The Fish and Wildlife Service (FWS) manages ANWR and is tasked with advancing the refuge’s mission of ecological conservation. Before it can approve oil development in ANWR, the FWS is statutorily required to ensure that oil development is compatible with ANWR’s mission. This Comment argues that the precautionary principle is embedded within the laws …

Urban Politics And The Assimilation Of Immigrant Voters, Rick Su

Journal Articles

Despite the growing strength of immigrant voters in the U.S., immigrants continue to participate at the polls in much lower rates than not only native voters, but also immigrants in the past. What accounts for this disparity? Looking beyond the characteristics of the immigrants themselves, this essay argues that a major reason lies in the different political structure that immigrants face upon their arrival, especially at the local level. Tracing the evolution of big city politics alongside, and in response to, the three major waves of foreign immigration to the U.S., this essay outlines three competing models of immigrant political …

Note – The Right To Be Forgotten, Robert Kirk Walker

UC Law Journal

Information posted to the Internet is never truly forgotten. While permanently available data offers significant social benefits, it also carries substantial risks to a data subject if personal information is used out of context or in ways that are harmful to the subject’s reputation. The potential for harm is especially dire when personal information is disclosed without a subject’s consent. In response to these risks, European policymakers have proposed legislation recognizing a “right to be forgotten.” This right would provide persons in European Union countries with a legal mechanism to compel the removal of their personal data from online databases. …

Accessing Justice Ii: A Model For Providing Counsel To New York Immigrants In Removal Proceedings, Stacy Caplow, Peter L. Markowitz, Claudia Slovinsky, Jojo Annobil, Peter Cobb, Amy L. Kenepaske, Nancy Morawetz, Lindsay Nash, Raluca Oncioiu, Oren Root, Maribel Hernández Rivera, Jane Stern, Isaac Wheeler, Marianne Yang

Online Publications

The New York Immigrant Representation Study (“NYIR Study”) is a two-year project of the Study Group on Immigrant Representation to analyze and ameliorate the immigrant representation crisis—the acute shortage of qualified attorneys willing and able to represent indigent immigrants facing deportation. The crisis has reached epic proportions in New York and shows no signs of abating.

In its year-one report (issued in the fall of 2011), the NYIR Study analyzed the empirical evidence regarding the nature and scope of the immigrant representation crisis. In that report, we documented how many New Yorkers—27 percent of those not detained and 60 percent …

Analysis Of Crime Data Using Principal Component Analysis: A Case Study Of Katsina State, Shehu U. Gulumbe, Dikko H. .G., Bello Yusuf

CBN Journal of Applied Statistics (JAS)

This paper analyses Katsina State crime data which consists of the averages of eight major crimes reported to the police for the period 2006 – 2008. The crimes consist of robbery, auto theft, house and store breakings, theft/stealing, grievous hurt and wounding, murder, rape, and assault. Correlation analysis and principal component analysis (PCA) were employed to explain the correlation between the crimes and to determine the distribution of the crimes over the local government areas of the state. The result has shown a significant correlation between robbery, theft and vehicle theft. While MSW local government area has the lowest crime …

Democratizing The Economic Sphere: A Case For The Political Boycott, Theresa J. Lee

West Virginia Law Review

The political boycott, though recently under attack through litigation aimed at compelled disclosure regimes, is a critical tool in constructing American democracy. Defining political boycotts as those refusals by consumers to buy goods or patronize businesses in order to effect political or social change, this Article is the first paper to place the political boycott at home in all three classic theories underlying the First Amendment: the marketplace of ideas, democracy and self-governance, and self-expression and autonomy. It also situates the boycott alongside current campaign finance doctrine via Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). Just …

Can Law And Literature Be Practical? The Crucible And The Federal Rules Of Evidence, Martin H. Pritikin

West Virginia Law Review

Counter-intuitively, one of the best ways to learn the practice-oriented topic of evidence may be by studying a work of fiction-specifically, Arthur Miller's The Crucible, which dramatizes the seventeenth-century Salem witch trials. The play puts the reader in the position of legal advocate, and invites strategic analysis of evidentiary issues. A close analysis of the dialogue presents an opportunity to explore both the doctrinal nuances of and policy considerations underlying the most important topics covered by the Federal Rules of Evidence, including the mode and order of interrogation, relevance, character evidence and impeachment, opinion testimony, and hearsay.

Bypassing Civil Gideon: A Legislative Proposal To Address The Rising Costs And Unmet Legal Needs Of Unrepresented Immigrants, Erin B. Corcoran

West Virginia Law Review

No abstract provided.

Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros

West Virginia Law Review

No abstract provided.

Presumed Disadvantaged: Constitutional Incongruit In Federal Contract Procurement And Acquisition Regulations, William J. Bogard

West Virginia Law Review

No abstract provided.

Introduction, Ernest Caldwell, Terry Nardin

Chicago-Kent Law Review

No abstract provided.

Excavating Constitutional Antecedents In Asia: An Essay On The Potential And Perils, Arun K. Thiruvengadam

Chicago-Kent Law Review

This essay seeks to endorse Tom Ginsburg's call for studies that expand the relatively limited range of historically informed scholarship on constitutional law in Asia. Such a trend will no doubt also broaden the focus of the discipline of contemporary constitutional scholarship, which remains unjustifiably narrow and excludes many regions of the globe. While appreciating the virtues of Ginsburg's broader analysis, the essay also seeks to draw attention to the potential pitfalls of such historically-oriented inquiry. I emphasize the fact that in many Asian societies, contemporary constitutional practice marks radical departures from pre-existing traditions of law and constitutionalism. Drawing upon …

Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes, Ernest Caldwell

Chicago-Kent Law Review

Western academics who criticize Chinese constitutionalism often focus on the inability of the Supreme People's Court to effectively enforce the rights of Chinese citizens enshrined within the Constitution of the People's Republic of China. Such criticism, I argue, is the result of analytical methods too invested in Anglo-American constitutional discourse. These approaches tend to focus only on those Chinese political issues that impede the institution of western-style judicial review mechanisms, and often construe a 'right' as merely having vertical effect (i.e., as individual rights held against the State). Drawing on recent scholarship that studies Chinese constitutionalism using its own categories …

Constitutionalism And The Rule Of Law: Considering The Case For Antecedents, Rogers M. Smith

Chicago-Kent Law Review

Tom Ginsburg credibly establishes that East Asian legal traditions include elements that can be considered antecedents for perhaps the strongest form of the rule of law, constitutional restraints that apply even to sovereigns. Treating these precedents chiefly as anticipations of Western-style constitutionalism, however, may be historically misleading and may inhibit reflection on the desirability of practices that represent alternatives to Western conceptions of the rule of law.

Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj

Chicago-Kent Law Review

This article provides a critical response to Ernest Caldwell's article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for "horizontal" protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell's thesis. First, while acknowledging and …

From Constitutional Listening To Moral Listening, Roy Tseng

Chicago-Kent Law Review

In order to provide comments on Michael Dowdle's account of "Constitutional Listening," this paper aims to establish three counter-arguments. First of all, in contrast to Dowdle's particularly narrow understanding of liberalism, I argue that to evaluate the moral import of liberalism properly, we need to draw attention to the diversities of liberalism. According to what I will call "historicist liberalism," for example, in understanding other cultures we should try to show sensitivities toward alien political systems and moral values. Second of all, although I appreciate Dowdle's effort to avoid the misinterpretation of non-Western constitutional discourse, I do not agree with …

From Constitutional Listening To Constitutional Learning, Leigh Jenco

Chicago-Kent Law Review

In this article, I point out some limitations of Michael Dowdle's "listening" model, particularly its basis in the "principle of charity." I try to show that listening, as well as the principle of charity, are inadvertently passive and one-sided exercises that seem to have little similarity to the deeply self-transformative "learning" Dowdle urges us to undertake. I go on to suggest other ways of accomplishing the goals Dowdle sets for this project. Specifically, I develop the "self-reflexive approach" to think about how we might change ourselves—our conversations, our terms, our concerns—in addition to, and in the process of, learning from …

Beyond The Schoolhouse Gate: Should Schools Have The Authority To Punish Online Student Speech?, Brittany L. Kaspar

Chicago-Kent Law Review

This note analyzes the current circuit split over whether schools should have the authority to punish students for speech made on the Internet. Part I discusses the First Amendment generally and the four Supreme Court cases that have refined its application with respect to on-campus student speech. Part II presents the ensuing circuit split over the constitutionality of disciplining students for online, off-campus speech. Specifically, this section will explain both of the existing perspectives and why neither of the two is ideal. Part III attempts to devise a solution to the current divide by advocating a compromise position. In particular, …

Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel

Chicago-Kent Law Review

The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the …

Constitutionalism: East Asian Antecedents, Tom Ginsburg

Chicago-Kent Law Review

To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. This article juxtaposes East Asian analogues or antecedents of constitutionalism with a particular set of recent theoretical understandings of the concept of constitutionalism. After conducting a historical review of political and legal institutions in China, Japan and Korea, the article argues that we can indeed speak …

The Nursing Standard Of Care In Illinois: Rethinking The Wingo Exception In The Wake Of Sullivan V. Edward Hospital, Emily Chase-Sosnoff

Chicago-Kent Law Review

This note analyzes the current circuit split among Illinois courts over whether the same-license requirement for medical expert testimony applies to testimony about the standard of care for nurse-doctor communications. Part I traces the history of the problem by explaining the original same-license requirement, the Wingo exception for nurse-doctor communications, and the Illinois Supreme Court's decision in Sullivan, which cast doubt on Wingo's continued survival. Part II illustrates the nature of the circuit split by describing the lower courts' three distinct interpretations of Sullivan. Finally, Part III argues that courts should apply Sullivan strictly and abandon the Wingo exception because …

Bankrupt Estoppel: The Case For A Uniform Doctrine Of Judicial Estoppel As Applied Against Former Bankruptcy Debtors, Eric Hilmo

Fordham Law Review

   This Note examines the role judicial estoppel plays in supporting the U.S. federal bankruptcy regime. Though once considered an obscure doctrine, the use of judicial estoppel to bar pursuit of previously undisclosed claims by former bankrupts has grown apace with burgeoning bankruptcy filings over the last decade. While the doctrine’s application in federal courts has evolved toward a common standard of application, state courts’ application remains idiosyncratic. The Note argues that under the established laws of judgment recognition and in light of federal courts’ sophisticated application of the doctrine, state courts should apply federal judicial estoppel standards to further national …