Law Commons^™

Choosing Justices: How Presidents Decide, Joel K. Goldstein

All Faculty Scholarship

Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …

Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein

All Faculty Scholarship

Chief Justice Roberts has now completed five years of what is likely to be a lengthy tenure in the Court’s center seat. The quality of his institutional leadership, like that of his predecessors, resists confident contemporary assessment to a unique degree among principal offices of American government inasmuch as much of what a Chief Justice does is invisible to all but a relatively few observers, most or all of whom generally remain discreetly silent about such matters. Nonetheless, history counsels that the professional and interpersonal skill which a Chief Justice displays may substantially affect the Supreme Court and the quality …

The Affordable Care Act And Competition: Antidote Or Placebo?, Thomas L. Greaney

All Faculty Scholarship

In the run-up to its enactment, the Patient Protection and Affordable Care Act (ACA) elicited howls of protest from opponents who claimed the federal government was, “taking over,” the American healthcare system, “micromanaging,” medicine, and generally exposing the nation to the bête noire of, “socialized medicine.” Hyperbole, misrepresentation and chauvinism aside, these sound bites suffer from a deeper flaw: They mischaracterize the fundamental thrust of the new law. Though the law establishes significant new regulatory authority, this is neither a new development (indeed it can be faulted for preserving pre-existing regulatory regimes) nor does it impair market competition. To the …

Regulating To Promote Competition In Designing Health Insurance Exchanges, Thomas L. Greaney

All Faculty Scholarship

Many of the most contentious issues in the debate over health reform concerned the performance and competitiveness of private health insurance including abusive and unfair practices such as denying coverage to individuals with pre-existing conditions; the impact of dominant insurers serving individual and small group markets; and purportedly excessive profits of the insurance industry and lavish salaries of their executives. A key component of the Affordable Care Act for implementing and overseeing reforms directed at these problems is the establishment of market-making entities, health insurance exchanges. These state-run entities will certify insurers’ compliance with regulations, monitor their performance, and take …

Missouri Provides Cost Of Sentences And Recidivism Data: What Does Cost Have To Do With Justice?, Michael A. Wolff

All Faculty Scholarship

The Missouri Sentencing Advisory Commission in 2010, which has an information-based sentencing information system, added two items of information to its Web-based Automated Sentencing Information feature: (1) the cost of each sentencing option and (2) the recidivism rate for offenders – with similar risk factors – who received sentences for the same offense or category of offenses. Because sentencing decisions in Missouri are discretionary, judges are free to use or to disregard the information. For many offenses, however, it is possible for an advocate to argue or for a judge (or the public) to conclude that a more harsh sentence …

What Is Originalism? The Evolution Of Contemporary Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused–-with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist …

Understanding Exclusion Of The Cisg: A New Paradigm Of Determining Party Intent, William P. Johnson

All Faculty Scholarship

The village market of old has become a global market today. The products we use or consume on a daily basis are produced all over the world. Asparagus grown in Peru, coffee beans harvested in Guatemala, shoes made in Italy, and Japanese automobiles are all readily available to consumers throughout the United States. Moreover, U.S. companies—even small U.S. companies—have their products manufactured in foreign jurisdictions where labor is cheap and the necessary raw materials are plentiful. And those U.S. companies who do manufacture their products in the United States nevertheless often obtain their parts, components, raw materials, and supplies from …

The Dispute On The Horizon: Contracting For Effective Dispute Resolution In International Business Transactions A U.S. Perspective, William P. Johnson

All Faculty Scholarship

This Article offers a view, from a U.S. perspective but for a non-U.S. readership, on the significant aspects of planning for dispute resolution in the context of cross-border business transactions involving U.S. and non-U.S. parties. Specifically, this Article identifies the issues that parties who are located in Brazil or in other jurisdictions throughout the Americas should consider at the time of drafting, negotiating, and finalizing business contracts with U.S. counterparties, as well as business contracts that are entered into in connection with other cross-border arrangements that could involve U.S. law even when there is no U.S. counterparty, to prepare for …

Turkey's Accession To The Cisg: The Significance For Turkey And For Sales Transactions With U.S. Contracting Parties, William P. Johnson

All Faculty Scholarship

The United Nations Convention on Contracts for the International Sale of Goods (CISG) entered into force for Turkey on August 1, 2011. This article considers the significance of Turkey’s accession to the CISG as part of Turkey’s continuing engagement with systems of international trade, especially as relates to sales transactions with U.S. contracting parties. This article urges the Turkish bar to recognize that the CISG is a viable alternative to various potentially applicable bodies of domestic sales law, and the article offers some guidance regarding proper understanding and application of the CISG. This article also offers comparative analysis of some …

Beyond Profit: Rethinking Corporate Social Responsibility And Greenwashing After The Bp Oil Disaster, Miriam A. Cherry, Judd F. Sneirson

All Faculty Scholarship

The explosion of the BP-leased Deepwater Horizon and subsequent oil spill stands as an indictment not just of our national energy priorities and environmental law enforcement; it equally represents a failure of Anglo-American corporate law and what passes for corporate social responsibility in business today. Using BP and the disaster as a compelling case study, this Article examines green marketing and corporate governance and identifies elements of each that encourage firms to engage only superficially in corporate social responsibility yet trumpet those efforts to eager consumers and investors. The Article then proposes reforms and protections designed to increase corporate social …

'The Mess We’Re In': Five Steps Towards The Transformation Of Prison Cultures, Lynn S. Branham

All Faculty Scholarship

Few dispute that conditions in prisons need to be improved – that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined. But the more fundamental question is whether prisons can be, not just improved, but transformed. Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Cost And Sentencing: Some Pragmatic And Institutional Doubts, Chad Flanders

All Faculty Scholarship

In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) …

How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question Of Assistance To The Voter, Chad Flanders

All Faculty Scholarship

The 2010 race for the Alaska Senate now seems to be over. After losing in the Republican Party Primary to Tea Party-backed candidate Joe Miller, Senator Lisa Murkowski staged a write-in candidacy and, bucking both U.S. and Alaska history, won the general election. Although much attention has been paid to Miller’s post-election challenges to Murkowski write-in ballots, a major election law question was at issue prior to the election: to what extent can poll workers assist voters who need help in voting for a write-in candidate?

After Murkowski declared her write-in candidacy, the Alaska Division of Elections distributed a list …

What Do We Want In A Presidential Primary? An Election Law Perspective, Chad Flanders

All Faculty Scholarship

Although the 2008 presidential primaries were in many ways a resounding success in terms of turnout, attention, and sheer excitement, many noted the pressing need for reform. States were rushing to hold their primaries sooner than ever, giving rise to “Super-Duper Tuesday,” where twenty-four states had their primaries on the same day. The Democratic nominee at one point looked like it might be decided by the votes of so-called “Superdelegates” - party regulars beholden to no one. As the Democratic nomination contest wore on, Rush Limbaugh, in “Operation Chaos,” encouraged his “dittoheads” to raid the party primaries of the Democrats, …

Predatory Ed: The Conflict Between Public Good And For-Profit Higher Education, Osamudia James

Faculty Publications

No abstract provided.

In Memoriam: William J. Stuntz, Pamela S. Karlan, Michael J. Klarman, Martha Minow, Daniel C. Richman, Robert E. Scott, David Skeel, Carol Steiker

Faculty Scholarship

Bill made a lot of errors in his articles. I know that, because he told me so, often in graphic detail, sometimes years after writing them; sometimes days. As anyone familiar with Bill or his work knows, this sort of harsh self-criticism bespeaks not any laxity or insouciance on Bill’s part, or even a false modesty, but rather an intense commitment to intellectual rigor, and (even more astounding for a legal academic) actually “getting it right.”

Taking A Stand: The Role Of The Early Childhood Teacher In Educating Against Homophobia, Tamar Ascher Shai

Journal of Hate Studies

This article focuses on early childhood educators’ readiness to address controversial issues in the classroom related to gender and sexual identity in young children, with a special focus on homosexuality and homophobia. The terms gender, sexual identity, sexual orientation, homosexuality, and homophobia are defined in relation to the part they play in the lives of young children and their families. The role of early childhood teachers and consequently the roles played by individuals who train teachers (teacher trainers) are also presented for discussion.

Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill

Faculty Scholarship

Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.

Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? …

Elections Matter, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Copyright Publication: An Empirical Study, Deborah R. Gerhardt

Faculty Publications

No abstract provided.

Toward A Geopolitics Of The History Of International Law In The Supreme Court – Remarks By Lori F. Damrosch, Lori Fisler Damrosch

Faculty Scholarship

I am pleased to have been one of the contributors to the forthcoming volume that provides the occasion for the present panel.' David Sloss and his co-editors, William Dodge and Michael Ramsey, deserve congratulations for coming up with a concept for a much-needed research project, for assembling a group of scholars from different disciplines, for organizing an authors' conference that was a model of collaborative interaction, and for exemplary editing of the papers. The volume examines an astounding number of cases involving international law at the Supreme Court and should become an indispensable reference for lawyers, scholars, and judges. The …

Kiobel And Corporate Immunity Under The Alien Tort Statute: The Struggle For Clarity Post-Sosa, Dorothy S. Lund

Faculty Scholarship

In September 2010, a two-judge Second Circuit majority ruled that corporations are immune from liability under the Alien Tort Statute (“ATS”). This statute, which grants aliens access to federal district courts, has emerged as a controversial tool for international norm enforcement in the last thirty years. The unexpected decision to foreclose corporate liability has generated a wave of criticism from human rights activists and international law scholars who claim that the decision is grounded in a fundamental misunderstanding of international law.

This commentary examines the Kiobel decision against other recent interpretations of the ATS, especially those following the Supreme Court’s …

The Cambridge Companion To European Union Private Law, Daniela Caruso

Shorter Faculty Works

Well into its teens by now, the private law of the European Union has its own companion. The very appearance of a publication of this sort is indeed a coming-of-age moment for a discipline whose existence was hard to fathom until the 1980s. Member states’ judges and lawyers have come full circle, from resisting European Union private law as an intrusion into a quintessentially national sphere, to embracing it as a natural consequence of market integration. The question is no longer whether or not to approximate the private laws of the member states. The question is how to do it. …

"Damages Or Nothing": The Post-Boumediene Constitution And Compensation For Human Rights Violations After 9/11, Elizabeth A. Wilson

Seton Hall Law Review

No abstract provided.

Daniel W. Shuman: A Gift For Collaboration, Liza H. Gold, Robert I. Simon

SMU Law Review

No abstract provided.

Column: Putting The Science In Digital Forensics, Fred Cohen

Journal of Digital Forensics, Security and Law

In a recent study, digital forensics was found to lack a consensus around even the most basis notions and terminology of the field. To quote: “These two preliminary studies individually suggest that (1) scientific consensus in the area of digital forensic evidence examination is lacking in the broad sense, but that different groups within that overall community may have limited consensus around areas in which they have special expertise, and (2) that the current peerreviewed publication process is not acting to bring about the sorts of elements typically found in the advancement of a science toward such a consensus. ... …

Extraction Of Electronic Evidence From Voip: Forensic Analysis Of A Virtual Hard Disk Vs Ram, David Irwin, Jill Slay, Arek Dadej, Malcolm Shore

Journal of Digital Forensics, Security and Law

The popularity of Voice over the Internet Protocol (VoIP) is increasing as the cost savings and ease of use is realised by a wide range of home and corporate users. However, the technology is also attractive to criminals. This is because VoIP is a global telephony service, in which it is difficult to verify the user’s identification. The security of placing such calls may also be appealing to criminals, as many implementations use strong encryption to secure both the voice payload as well as to control messages making monitoring such VoIP calls difficult since conventional methods such as wire-tapping is …

A Case Study In Forensic Analysis Of Control, Fred Cohen

Journal of Digital Forensics, Security and Law

This paper describes a case study in which a method for forensic analysis of control was applied to resolve probative technical issues in a legal action. It describes one instance in which the analysis was successfully applied without challenge, addresses the details of most of the different facets of the analysis method, and demonstrates how such analysis provides a systematic approach to using technical methods to address legal issues as a case study.