Open Access. Powered by Scholars. Published by Universities.®
- Publication
Articles 1 - 16 of 16
Full-Text Articles in Law
Unconscious Bias And The 2008 Presidential Election, Gregory S. Parks, Jeffrey J. Rachlinski
Unconscious Bias And The 2008 Presidential Election, Gregory S. Parks, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
The 2008 presidential campaign and election will be historic. It marks the first time a Black person (Barack Obama) and a woman (Hillary Clinton) have a real chance at winning the Presidency. Their viability as candidates symbolizes significant progress in overcoming racial and gender stereotypes in America. But closer analysis of the campaigns reveals that race and gender have placed enormous constraints on how these two Senators can run their candidacy. This is not surprising in light of the history of race and gender in voting and politics in America. But what is perhaps more surprising is how the campaigns …
Taking Distribution Seriously, Robert C. Hockett
Taking Distribution Seriously, Robert C. Hockett
Robert C. Hockett
It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Robert C. Hockett
Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …
Why Rick Santorum Is A Menace And A Libertarian's Worst Nightmare, Eric J. Segall
Why Rick Santorum Is A Menace And A Libertarian's Worst Nightmare, Eric J. Segall
Eric J. Segall
No abstract provided.
Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu
Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu
Jonathan Yu
No abstract provided.
After Shelby County: Getting Section 2 Of The Vra To Do The Work Of Section 5, Christopher Elmendorf, Douglas Spencer
After Shelby County: Getting Section 2 Of The Vra To Do The Work Of Section 5, Christopher Elmendorf, Douglas Spencer
Christopher S. Elmendorf
Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section …
After Shelby County: Getting Section 2 Of The Vra To Do The Work Of Section 5, Christopher S. Elmendorf, Douglas M. Spencer
After Shelby County: Getting Section 2 Of The Vra To Do The Work Of Section 5, Christopher S. Elmendorf, Douglas M. Spencer
Christopher S. Elmendorf
Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section …
Political Campaigning By Churches And Charities: Hazardous For 501(C)(3)S, Dangerous For Democracy, Donald B. Tobin
Political Campaigning By Churches And Charities: Hazardous For 501(C)(3)S, Dangerous For Democracy, Donald B. Tobin
Donald B. Tobin
Nonprofit section 501(c)(3) organizations are prohibited from participating or intervening in an election on behalf of a candidate for public office. Despite this prohibition, 501(c)(3) tax-exempt organizations have become increasingly active in political campaigns. Many organizations are either ignoring the political campaign ban or are using "issue discussion" or "lobbying" as a means of promoting candidates and testing the limits of the prohibition. Current scholarship surrounding the political campaign ban argues that the ban is either unconstitutional or inappropriate as a matter of public policy. This article argues that the ban is both meritorious and constitutional. It argues that taxpayer …
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Darren L Hutchinson
Abstract
Preventing Balkanization or Facilitating Racial Domination: A Critique of the
New Equal Protection
The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.” …
Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page
Cathren Page
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …
Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin Hoerner
Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin Hoerner
Benjamin O Hoerner
In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry of …
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
Dorit R. Reiss
The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …
The Life And Times Of Targeted Killing, Markus Gunneflo
The Life And Times Of Targeted Killing, Markus Gunneflo
Markus Gunneflo
Against the background of the ongoing shift in the perception of the legality and legitimacy of extraterritorial lethal force in counterterrorism, my doctoral thesis analyses the emergence of so-called “targeted killing” in the history of Israel and the US, as well as in international law. It finds that the relationship between targeted killing and law, particularly international law, is not a straightforward case of more or less determinate and legally binding norms being applied to state measures adopted in situations of insecurity (in this case, those of the second Intifada and 9/11) but rather one of a much longer and …
"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson
"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson
Darren L Hutchinson
The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.
A growing body of and federal and state-court precedent addresses the flaws of the Court’s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …
Interactions Between Public And Private Resource Governance: Key Insights From The Fisheries Case, Zdravka Tzankova
Interactions Between Public And Private Resource Governance: Key Insights From The Fisheries Case, Zdravka Tzankova
Zdravka Tzankova
Growing in presence and visibility, eco-labels and other forms of green certification are the more obvious signs of a broader social and policy phenomenon: the rise of private regulation and nonstate, market-based governance of environmental and resource practices. The growth of private regulatory initiatives, especially initiatives led by NGOs and other civil society actors, is increasingly accompanied by concerns over their potential to detract from public, government regulation.
This paper seeks to generate insights on the nature and consequences of interaction between more traditional forms of public, government regulation and the growing realm of market-based regulation by nonstate actors. It …
Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall
Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall
Brian M McCall