Law Commons^™

The Legislative Veto In Times Of Political Reversal: Chadha And The 104th Congress, Michael E. Herz

Articles

No abstract provided.

Dealing With Evidentiary Deficiency, Richard D. Friedman

Cardozo Law Review

Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency.

Liability For Uncertainty: Making Evidential Damage Actionable, Ariel Porat, Alex Stein

Cardozo Law Review

Because factual uncertainty distorts the allocation of civil liability, this Article argues that the law should impose liability for uncertainty. Justified on both corrective justice and economic efficiency grounds, this liability should be imposed upon any person who negligently aggravates the uncertainty of a civil case by making its evidential base deficient. Because "evidence" belongs to the world of inferences rather than things, evidential damage may be inflicted in a variety of ways, far beyond destruction of documents and other physical tampering with evidence. Through adoption and refinement of this insight, the Article diagnoses the presence of evidential damage …

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

William & Mary Bill of Rights Journal

Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

Justices At Work: An Introduction, Michel Rosenfeld

Cardozo Law Review

"Justices at Work," a day long conference which took place on September 19, 1995 at the Benjamin N. Cardozo School of Law, brought together Justices and constitutional scholars from seven different countries to consider a hypothetical constitutional case dealing with fundamental rights. This issue of the Law Review includes the facts of the hypothetical case, the applicable hypothetical statute, the briefs submitted to the International Moot Courtall of which were the product of a collaborative effort among the seven scholars involved-as well as a transcript of the proceedings and of the deliberations of the seven Justices: Justice Ruth Bader Ginsburg …

Land Use Regulation And The Takings Clause: How Much Use Must An Owner Lose Before Being Entitled To Compensation Because The Government Has Taken The Property?, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.

Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber

Faculty Scholarship

No abstract provided.

United States Supreme Court: 1997 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Globalizing Sanctions Against Foreign Bribery: The Emergence Of A New International Legal Consensus, David A. Gantz

Northwestern Journal of International Law & Business

Part I of the article begins with a review of the rationale and key legal ele- ments of the U.S. Foreign Corrupt Practices Act. Part II describes recent efforts by the United States to convince other governments and firms of the need for binding, enforceable and universally accepted rules against corrupt payments to foreign public officials. Parts III and IV survey the activities of various governmental organizations and major private sector groups that support international efforts to effectively discourage foreign bribery, re- spectively. The key sections, Parts V and VI, describe, analyze and critique the two major international conventions, the …

The Development Of Compliance Programs: One Company's Experience, Patrick J. Head

Northwestern Journal of International Law & Business

Though the FCPA is only a small portion of the coverage of corporate compliance programs, this perspective will focus on the FCPA and, to a certain extent, on other collateral impact statutes, such as securities and in- ternal revenue laws. It will not delve into related statutes, such as the over- seas reach of antitrust laws.

The Worldwide Banning Of Schmiergeld: A Look At The Foreign Corrupt Practices Act On Its Twentieth Birthday, Stanley Sporkin

Northwestern Journal of International Law & Business

Many cynics viewed the United States' attempt to ban all forms of cor- porate bribery as another example of the federal government's taking on the role of Don Quixote and tilting at windmills. While the law may not have been taken seriously when it was first enacted, it is clear that it has assumed a prominent place among our federal criminal laws. According to a recent article in the Wall Street Journal, the FCPA remains "the world's toughest law against foreign bribes."9 This article will provide background as to how the law was conceived and will discuss the law's present …

Designing An Fcpa Compliance Program: Minimizing The Risks Of Improper Foreign Payments, Daniel L. Goelzer

Northwestern Journal of International Law & Business

Every U.S. company, public or private, that conducts operations out- side of the United States should devote serious consideration to creating and implementing an Foreign Corrupt Practices Act ("FCPA" or "Act") compli- ance program. In this context, an "FCPA compliance program" means a single, documented, corporate plan designed to reduce the likelihood that the company will engage in violations of the anti-bribery provisions of the FCPA, and to detect such violations and bring them to the attention of sen- ior management, if they occur.' A well-designed compliance program has obvious importance in educating employees concerning their responsibili- ties in this …

Defending Sec And Doj Fcpa Investigations And Conducting Related Corporate Internal Investigations: The Triton Energy/Indonesia Sec Consent Decree Settlements, Arthur F. Mathews

Northwestern Journal of International Law & Business

This article will summarize the foreign bribery/corrupt foreign pay- ments provisions of the FCPA, briefly survey the related books and records and internal accounting controls provisions, analyze available defenses to civil and criminal FCPA charges, and explore sensitive substantive and strategic issues that arise in the defense of SEC and DOJ/grand jury investi- gations and in the conduct of related corporate internal investigations. This article will also analyze the recent SEC consent decree settlements in the Triton Energy/Indonesia case, and explore the types of defenses that might be pursued if an FCPA foreign payments case like Triton were litigated rather …

The Human Constitution And Constitutive Law: A Prolegomenon, John O. Mcginnis

Articles

No abstract provided.

Constitutional Law - To Punish Or Not To Punish - That Is The Question - Taylor V. Cisneros: Addressing The Constitutional Prohibitions Against Civil Sanctions In The Third Circuit, Caroline J. Patterson

Villanova Law Review (1956 - )

No abstract provided.

The Commerce Clause Post-Lopez: It's Not Dead Yet, Nicole Huberfeld

Law Faculty Scholarly Articles

This Note focuses on two important pieces of social-policy legislation that could be affected by United States v. Lopez: the Violence against Women Act (VAWA) and the Freedom of Access to Clinic Entrances Act (FACE). Conflicts exist in the lower federal courts regarding the constitutionality of both statutes, which were enacted under the Commerce Clause. This Note seeks to resolve the dispute in favor of upholding both acts. Part I surveys the major cases in the history of the Commerce Clause as they relate to social-policy legislation, up to and including Lopez. Part II discusses the conflicting cases in the …

The Interactive Constitution: An Essay On Clothing Emperors And Searching For Constitutional Truth, Neal Devins

Faculty Publications

No abstract provided.

The Pluralist Game: Francis Canavan On Law, Public Morality, And Pluralism In Contemporary America, Gerard V. Bradley

Journal Articles

You may have heard Hadley Arkes's charge — always made in good-natured friendship — that Father Richard John Neuhaus owes him royalties for the title of Neuhaus's wonderful monthly, First Things. After all, Arkes's book of the same name came out first. Father Neuhaus read it and liked it, and, voila, shortly thereafter the magazine appeared. Arkes has a good circumstantial case.

You probably know that one of Father Neuhaus's books is called The Catholic Moment. His thesis is that late twentieth century Americans are living through a "crisis of unbelief." The Roman Catholic Church, Neuhaus argues, can and should …

Why Has The Fcpa Prospered, Lee C. Buchheit, Ralph Reisner

Northwestern Journal of International Law & Business

The international reaction to the Helms-Burton Act has been fierce.7 But even while the Helms-Burton debate has been raging, an earlier iece of U.S. legislation, the Foreign Corrupt Practices Act (FCPA or Act), has garnered unexpected flattery from some of the same countries that have been so vigorous in denouncing the Helms-Burton Act. There are two pos- sible explanations for these different reactions.

The Problem Of Corruption: A Tale Of Two Countries, Kimberly Ann Elliott

Northwestern Journal of International Law & Business

This perspective provides an introduction to the problem of corruption, focusing on two questions: * What causes corruption? * Where is corruption most serious? The perspective concludes with a brief discussion of two countries - Kenya and Uganda - that seem to be going in opposite directions politi- cally and economically, as well as in their attitudes toward corruption.

International Financial Institutions Face The Corruption Eruption: If The Ifis Put Their Muscle And Money Where Their Mouth Is, The Corruption Eruption May Be Capped, James P. Jr. Wesberry

Northwestern Journal of International Law & Business

This article addresses what IFIs are doing, are not doing, and hopefully might do to help cap the corruption eruption sweeping our world. The article primarily relates the efforts of the World Bank in this area and briefly discusses efforts by other major IFIs.

The Case Against The Prison-Industrial Complex, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction (Symposium: Presidential Power In The Twenty-First Century), Michael J. Gerhardt

Faculty Publications

No abstract provided.

Putting Presidential Performance In The Federal Appointments Process In Perspective, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Moderating Investigative Lies By Disclosure And Documentation, Robert P. Mosteller

Faculty Publications

No abstract provided.

Private Financing Of Criminal Prosecutions And The Differing Protections Of Liberty And Equality In The Criminal Justice System, Joseph E. Kennedy

Faculty Publications

No abstract provided.

A Clash Of Fundamental Rights: Conflicts Between The Fifth And Sixth Amendments In Criminal Trials, Roderick R. Ingram

William & Mary Bill of Rights Journal

The United States Constitution's Fifth and Sixth Amendments protect the rights of criminal defendants and witnesses. The Fifth Amendment's privilege against self-incrimination protects witnesses from forced self-incrimination, and the Sixth Amendment provides criminal defendants with the right to cross-examine prosecution witnesses and to have compulsory process for obtaining witnesses. These fundamental rights conflict when a prosecution witness invokes the Fifth Amendment privilege on cross-examination or when a defense witness invokes the privilege on direct-examination. A grant of either use or transactional immunity would remove the potential for self-incrimination, but courts are split on whether they possess the authority to grant …

A Constitutional Bibliography, Thomas E. Baker

William & Mary Bill of Rights Journal

No abstract provided.

Hermann Heller - An Introduction, David Dyzenhaus

Cardozo Law Review

Hermann Heller (July 17, 1891 - November 4, 1933) came from a Jewish family in the Austro-Hungarian Empire. He interrupted his law studies to volunteer for service in the Austrian army during the First World War. His experiences as a front-line fighter left him with a heart condition which contributed to his death at the age of forty-two. But his poor health did not dampen his deeply combative spirit-a spirit which he put at the service of German social democracy. In March 1920, together with Gustav Radbruch (who had just successfully promoted Heller's Habilitation, his senior doctorate, at Kiel), …