Law Commons^™

Redress For Historical Injustices: Haiti’S Claim For The Restitution Of Post-Independence Payments To France, Günther Handl

University of Miami Inter-American Law Review

No abstract provided.

Restitution For Haiti, Reparations For All: Haiti’S Place In The Global Reparations Movement, Brian Concannon Jr., Kristina Fried, Alexandra V. Filippova

University of Miami Inter-American Law Review

Haiti’s claim for restitution of the debt coerced by France in exchange for Haiti’s 1804 independence has unique legal advantages that can open the door to broader reparations for the descendants of all people harmed by slavery. But in order to assert the claim, Haiti first needs help reclaiming its democracy from a corrupt, repressive regime propped up by the powerful countries that prospered through slavery and overthrew the Haitian President who dared to assert his country’s legal claim. This article explores Haiti’s Independence Debt, and the fight for restitution of it, in the context of two centuries of continued …

Haiti And The Indemnity Question, Alex Dupuy

University of Miami Inter-American Law Review

1) Haiti did not agree to pay an indemnity to France in 1825 because it feared a war with its former colonial power. In 1814, France sent envoys to Haiti to demand that King Henry Christophe, who controlled the north of Haiti, and President Alexandre Pétion, who controlled the south and west, resubmit to French sovereignty. Christophe had that envoy arrested and jailed. Pétion, on the other hand, offered to pay an indemnity to France to compensate the former colonial property owners in return for France’s official recognition of Haiti’s independence.

2) Jean-Pierre Boyer succeeded Pétion as president of the …

The Lost Haitian Generation And The 1826 “French Debt”: The Case For Restitution To Haiti, Charlot Lucien

University of Miami Inter-American Law Review

No abstract provided.

Haiti And The Burden Of History, Frédérique Beauvois

University of Miami Inter-American Law Review

No abstract provided.

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 substantive duties …

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 described as …

Functions Of The Rule Of Law, Brian Z. Tamanaha

Scholarship@WashULaw

This concise essay examines multiple manifest and latent functions of the rule of law. The rule of law is characterized as a society in which government officials and the populace are generally bound by and abide law. The functions covered include: personal and collective security and trust; integration of society; legal restrictions on officials; liberty and guiding conduct; economic development; a pivotal place for legal professionals; entrenching power structures; normative commitment and critical standard; and rhetoric. The discussion raises core issues about each function.

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 be sustained without …

Public Law, Precarity, And Access To Justice, Amnon Lev

Indiana Journal of Global Legal Studies

In the first part, I examine Thomas Hobbes' theory of commonwealth to see how it situates subjects in relation to justice. Hobbes famously founds his commonwealth on the equal subjection of all to the Leviathan, which is the equal subjection of all to law. We need to understand why he nevertheless needs to accommodate the diversity of society-the basic fact that some are weak while others are not-into the operation of the public law machine. As we shall see, the accommodation of social diversity is tied to a proto-liberal distinction between social spheres that relegates much of human life to …

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 like the …

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 their …

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

West Virginia Law Review

No abstract provided.

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 …

The Rise Of The Executive And The Post-Political Drift Of European Public Law, Marco Dani

Indiana Journal of Global Legal Studies

Contemporary European public law is marked by the uneasy relationship between national constitutional democracies and the executive-based supranational governance of the European Union. Whereas constitutional democracy remains the dominant source of inspiration for European institutional imagination, the supranational executive has relentlessly expanded its scope and institutional culture to key policy fields at the core of national constitutional democracies. This article tracks the rise of the supranational executive by examining three relational paradigms developed between national constitutional democracies and the European Union in distinct phases of the European integration process (i.e., the complementarity paradigm in the foundational period; the competition paradigm …

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

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., liability in the second degree) …

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

Faculty Publications

No abstract provided.

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 its …

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 …

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

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 light of the …

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

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

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

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

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

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

John L. Gedid

No abstract provided.