Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Public Law

Discipline
Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 46

Full-Text Articles in Law

On Trust: The U.N. Security Council As Fiduciary, Devika Hovell Mar 2021

On Trust: The U.N. Security Council As Fiduciary, Devika Hovell

William & Mary Law Review

Perceived failures by the U.N. Security Council have been characterized as “betrayals of trust,” which threaten to impact the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes ...


Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent Mar 2021

Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent

William & Mary Law Review

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These ...


Correlation And Constitutional Rights, Laura K. Donohue Aug 2020

Correlation And Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Skepticism among American scholars about the value of analytic legal positivism stems in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s framework and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law in particular, demonstrating the weaknesses in assuming that the private law model can ...


Boilerplate Indignity, Erik Encarnacion Oct 2019

Boilerplate Indignity, Erik Encarnacion

Indiana Law Journal

Commentators have long tried to sound the alarm about boilerplate contracts, pointing out threats ranging from the loss of privacy rights to the erosion of public law and democratic self-governance. This Article argues that this list of concerns misses something important: that imposing certain boilerplate terms on individuals is incompatible with their dignity. After explaining and defending the conception of dignity presupposed here, this Article shows how boilerplate accountability waivers—like arbitration clauses—prevent people from accessing the distinctive dignity-vindicating role of courts and degrade their status as legal persons. And because governments may legitimately protect dignity interests, proposed reforms ...


Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche Oct 2019

Bitcoin: Order Without Law In The Digital Age, John O. Mcginnis, Kyle Roche

Indiana Law Journal

Modern law makes currency a creature of the state and ultimately the value of its currency depends on the public’s trust in that state. While some nations are more capable than others at instilling public trust in the stability of their monetary institutions, it is nonetheless impossible for any legal system to make the pre-commitments necessary to completely isolate the governance of its money supply from political pressure. This proposition is true not only today, where nearly all government institutions manage their money supply in the form of central banking, but also true of past private banking regimes circulating ...


Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent Sep 2019

Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent

Evan J. Criddle

No abstract provided.


Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins Sep 2018

Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins

West Virginia Law Review

No abstract provided.


Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton Jan 2018

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Cornell Law Faculty Publications

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some ...


Health Law, Public Law, And Social Justice, Sidney D. Watson Jan 2017

Health Law, Public Law, And Social Justice, Sidney D. Watson

Saint Louis University Law Journal

I have taught Health Law for almost three decades. In the early years, the course was primarily about private law, the application of contract and tort principles in the context of health insurance coverage and medical care. Federal law of Medicare, Medicaid, EMTALA, and federal civil rights laws always made an appearance. Other federal statutes were added as they came along: HIPAA, the Americans with Disabilities Act, and GINA. Over the years, the course focused more and more on federal statutes until the passage of the Affordable Care Act (“ACA”) in 2010 completed the transition

Health law is now a ...


The Court Of Justice Of The European Union Creates An Eu Law Of Liability For Facilitation Of Copyright Infringement: Observations On Brein V. Filmspeler [C-527/15] (2017) And Brein V. Ziggo [C-610/15] (2017), Jane C. Ginsburg Jan 2017

The Court Of Justice Of The European Union Creates An Eu Law Of Liability For Facilitation Of Copyright Infringement: Observations On Brein V. Filmspeler [C-527/15] (2017) And Brein V. Ziggo [C-610/15] (2017), Jane C. Ginsburg

Faculty Scholarship

After a series of decisions in which the Court of Justice of the European Union appeared to be cutting back on the application of the right of communication to the public with respect to the provision of hyperlinks, the Court’s most recent decisions in Brein v. Filmspeler (C-527/15) and Brein v. Ziggo (C-610/15) concerning, respectively, sale of a device pre-loaded with hyperlinks to illegal streaming sites, and The Pirate Bay BitTorrent platform, indicate instead that the Court’s prior caselaw was in fact gradually advancing toward a European harmonization of the law on derivative liability (i.e ...


Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent Nov 2016

Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.


Deliberative, Independent Technocracy V. Democratic Politics: Will The Globe Echo The E.U, Martin Shapiro Dec 2015

Deliberative, Independent Technocracy V. Democratic Politics: Will The Globe Echo The E.U, Martin Shapiro

Martin Shapiro

The article discusses the issue of technocracy and democracy as the structure of transnational administrative law. This article defines the building blocks of administrative law namely regulation, the tension between democratic control of public policy and the delegated legislation. When all of these building blocks are taken into account, future transnational regulatory regimes are likely to arise in relatively high-technology or otherwise complex spheres of activity.


The Roberts Court And Penumbral Federalism, Edward Cantu Apr 2015

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and ...


On The Public-Law Character Of Competition Law: A Lesson Of Asian Capitalism, Michael Dowdle Aug 2014

On The Public-Law Character Of Competition Law: A Lesson Of Asian Capitalism, Michael Dowdle

Michael Dowdle

This article argues that competition law is best seen as a form of public law – ‘the law that governs the governing of the state – and not as simply a form of private market regulation. It uses the experiences of ‘Asian capitalism’ to show how capitalist economies are in fact much more variegated than the orthodox model of competition law presumes, and that this variegated character demands a form of regulation that is innately political rather than simply technical. Orthodox competition regimes address this complexity by segregating non-standard capitalisms into alternative doctrinal jurisprudences, but this renders conceptually invisible the political balancing ...


Private Standards Organizations And Public Law, Peter L. Strauss Dec 2013

Private Standards Organizations And Public Law, Peter L. Strauss

William & Mary Bill of Rights Journal

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute (ANSI), and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors the Occupational Safety and Health Administration (OSHA) requires for use in work-place caution ...


The Supreme Court, The Law Of Nations, And Citations Of Foreign Law: The Lessons Of History, Daniel A. Farber Sep 2013

The Supreme Court, The Law Of Nations, And Citations Of Foreign Law: The Lessons Of History, Daniel A. Farber

Daniel A Farber

The article attempts to examine the U.S. Supreme Court's (SC) reliance on foreign law in light of historic American attitudes toward the law of nations and other forms of foreign authority. First, it provides additional background on the current SC's reliance on foreign law. Second, it looks at the historical record, explaining how foreign law influenced the thinking of the framers of the Constitution and of the anti-slavery Republicans. Third, it surveys the history of SC's use of foreign law in constitutional decisions. Fourth, it assesses some of the arguments against SC use of foreign law ...


In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey Sep 2013

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

No abstract provided.


The Cosmopolitan Turn In Constitutionalism: An Integrated Conception Of Public Law, Mattias Kumm Jul 2013

The Cosmopolitan Turn In Constitutionalism: An Integrated Conception Of Public Law, Mattias Kumm

Indiana Journal of Global Legal Studies

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn: it has to occupy itself with the global legitimacy conditions for the exercise of state sovereignty. Contrary to widely made implicit assumptions in constitutional theory and practice, constitutional legitimacy is not self-standing. Whether a national constitution and the political practices authorized by it are legitimate does not depend only on the appropriate democratic quality and rights-respecting nature of domestic legal practices. Instead, national constitutional legitimacy depends, in part, on how the national constitution is ...


Tying The Knot: Determining The Legality Of Same-Sex Marriage And The Courts’ Responsibilities In Defining The Right, Eva Cerreta May 2012

Tying The Knot: Determining The Legality Of Same-Sex Marriage And The Courts’ Responsibilities In Defining The Right, Eva Cerreta

Honors Scholar Theses

Ambiguous terms and phrases in the United States Bill of Rights have caused a great deal of controversy throughout United States history over what rights truly exist and which branch of government should be responsible for determining those rights. These questions are currently being debated in states throughout the country concerning the right to same-sex marriage. This thesis answers these questions of legality and responsibility concerning the right to same-sex marriage. The thesis uses case law of the doctrinal development of the Equal Protection Clause and the right to privacy to suggest that the Equal Protection Clause provides the soundest ...


The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover Mar 2012

The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover

William & Mary Law Review

The American regulatory system is unique in that it expressly relies on a diffuse set of regulators, including private parties, rather than on a centralized bureaucracy for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is integral to the structure of the modern administrative state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it. Yet, mechanisms of enforcement attendant to private ...


Theoretical Perspectives On Public Law, Administration And Public Health History, Lydia C. Stewart Ferreira May 2008

Theoretical Perspectives On Public Law, Administration And Public Health History, Lydia C. Stewart Ferreira

Lydia C. Stewart Ferreira

The struggle between authority and liberty, the tyranny of the majority, the prevention of harm, unlimited state control, the necessary rights belonging to citizens, and the establishment of contritutional checks by a consenting community - is the theory and practice of public health. This paper seeks to explore the interaction of epidemics on public and administrative legal theory. It is proposed that the legal theories of Locke in the 1600s and Mills in the 1800s regarding state and individual legal rights were shaped by public health disease epidemics of their day.


Análise Econômica Do Direito Tributário E Colisão De Princípios Jurídicos: Um Caso Concreto., Cristiano Carvalho, Ely José De Mattos Jan 2008

Análise Econômica Do Direito Tributário E Colisão De Princípios Jurídicos: Um Caso Concreto., Cristiano Carvalho, Ely José De Mattos

Cristiano Rosa de Carvalho

This paper aims to apply Rational Choice Theory to legal decisions in actual cases where there are conflict of legal principles. Through the application of concepts and tools from microeconomics, we intend to offer alternatives for reaching optimal solutions in situations where constitutional rights of equal importance and weight are diametrically opposed.


Lawyers Hold The Key: Attacks On Judicial Independence Are Based On Ignorance And Are Best Parried By Lawyers Themselves, John L. Gedid Dec 2007

Lawyers Hold The Key: Attacks On Judicial Independence Are Based On Ignorance And Are Best Parried By Lawyers Themselves, John L. Gedid

John L. Gedid

No abstract provided.


The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer Aug 2005

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress ...


Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang Jan 2005

Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang

Faculty Scholarship at Penn Law

No abstract provided.


Thinking Beyond The Domestic-International Divide: Toward A Unified Concept Of Public Law, Christopher A. Whytock Oct 2004

Thinking Beyond The Domestic-International Divide: Toward A Unified Concept Of Public Law, Christopher A. Whytock

Faculty Scholarship

Legal scholars and political scientists typically study domestic public law and international public law as separate subjects, treating them as essentially different phenomena. This separate treatment has been justified on the grounds that the two realms of public law have important and intrinsic structural and functional differences: domestic law is a hierarchical system with centralized enforcement whose primary function is to constrain behavior, whereas international law is an anarchic system relying on decentralized enforcement or self-help that primarily performs functions other than constraint. This article reassesses that understanding. It argues that domestic public law and international public law are in ...


Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh Jan 2004

Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern ...


Judicial Review And Global Federalism, Charles H. Koch Jr. Jan 2002

Judicial Review And Global Federalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.


Cooperación: ¿Puede La Política Impulsar El Desarrollo?, Enrique Barros Bourie Nov 2001

Cooperación: ¿Puede La Política Impulsar El Desarrollo?, Enrique Barros Bourie

Enrique Barros Bourie

No abstract provided.


Alfredo Jocelyn-Holt: El Peso De La Noche: Nuestra Frágil Fortaleza Histórica, Enrique Barros Bourie Jan 1998

Alfredo Jocelyn-Holt: El Peso De La Noche: Nuestra Frágil Fortaleza Histórica, Enrique Barros Bourie

Enrique Barros Bourie

No abstract provided.