Law Commons^™

A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley

Osgoode Hall Law Journal

In anticipation of the United Kingdom's patriation of the European Convention on Human Rights, the author explores the possible impact that a Bill of Rights will have on the U.K. system of justice from a European and U.K. perspective. The author argues that, from a European perspective, the U.K. has an established history of yielding to supra-national law given its membership in the European Union. However, from a U.K. perspective, this will present new challenges, as the constitutionality of domestic legislation is subject to increased judicial scrutiny in ensuring conformance with European Convention obligations. The author argues that the pressures …

R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien

Osgoode Hall Law Journal

The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court's new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is …

Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin

Osgoode Hall Law Journal

Were the last 30 years of feminist law reform activity around criminal justice misdirected? Or, if not misdirected, have the efforts been appropriated and manipulated by the New Right? This commentary reflects on this history, and on the failures of the retributive justice project generally, and argues for a reexamination of both. The discussion focuses on the tactics of the New Right and on the retributive goals of some victims' rights organizations as a means of highlighting the unintended consequences of key feminist initiatives around violence against women. Finally, the commentary identifies alternatives to retribution and a need for careful …

The Timor Gap: Who Decides Who Is In Control, Brandi J. Pummell

Denver Journal of International Law & Policy

No abstract provided.

Review Of 'Artificial Legal Intelligence', Stephen M. Mcjohn

Suffolk University Law School Faculty Works

Artificial Legal Intelligence, by Pamela Gray, presents a thought-provoking approach to both computational models of legal reasoning and the use of evolutionary thinking about the law. Drawing on a prodigious amount of research, the book looks beyond the rather technical approach common in the field and attempts to place artificial legal intelligence within the broad structure of legal history. This paper first summarizes the book's vision of a computerized artificial legal intelligence, a vision of developments in both technology and legal history. The paper discusses how this fits with trends in both artificial intelligence and legal theory. The paper further …

Labor Law Obstacles To The Collective Negotiation And Implementation Of Employee Stock Ownership Plans: A Response To Henry Hansmann And Other "Survivalists", Jeffrey M. Hirsch

Faculty Publications

No abstract provided.

Victims' Rights And The Constitution: Moving From Guaranteeing Participatory Rights To Benefiting The Prosecution, Robert P. Mosteller

Faculty Publications

No abstract provided.

Religion And The Public Square: Making Democracy Safe For Religious Minorities, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In 1995, Judge Richard Posner ruled that the state of Illinois could not celebrate Good Friday as a statewide holiday for the public schools.' Closing all Illinois public schools on Good Friday, Posner declared, violated the Establishment Clause of the Constitution by "plac[ing] the support of the state behind a wholly sectarian holiday." The Ninth Circuit has disagreed, upholding Good Friday as a state holiday in Hawaii. Federal courts have similarly reached varying conclusions about the constitutionality of other symbolic endorsements of Christianity, including the use of a cross as part of a government seal, the inclusion of the phrase …

A Tour Of Mistakes, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In these pages, Steven Lubet recently reviewed A Tour of the Calculus, by David Berlinski. Inspired by both the beauty of calculus and Berlinski's description of it, Lubet waxes poetic on the many parallels between the law and calculus. It is completely understandable--even admirable that one might be led to ruminations on the relationship between calculus and one's own discipline. There is little doubt that the subject of calculus stands as one of the great intellectual feats of Western thought. It has had profound implications for physics, engineering, economics and many other disciplines-so why not law? Alas, these philosophical musings …

Who Needs Congress? An Agenda For Administrative Reform Of The Endangered Species Act, J.B. A. Ruhl

Vanderbilt Law School Faculty Publications

This article comprehensively examines the history and content of the numerous administrative reforms of the Endangered Species Act program carried out under the tenure of Department of the Interior Secretary Bruce Babbitt. The assessment is that these reforms provide a tremendous impetus for innovation of species conservation.

Predictors Of Jurors' Decisions And Post-Trial Perceptions Of Child Witness Credibility In A Child Sexual Assault Trial, Janet Murvin Gibson

Masters Theses

The effect of judge’s instructions and jurors’ preconceptions about children’s credibility on juror decision making and post-trial perceptions of children’s credibility was investigated. Also, the relationship between jurors’ post-trial perceptions of children’s credibility and measure of guilt was explored. Jurors’ level of authoritarianism was utilized as a covariate and jurors’ comprehension of the judge’s instructions was considered as a possible mediating influence on their decision making. One hundred and twenty five undergraduate women enrolled in psychology classes at Eastern Illinois University viewed a videotaped simulation of a child sexual assault trial. Participants heard either standard instructions in which the judge …

Developing A Positive Theory Of Decisionmaking On U.S. Courts Of Appeals, Tracey E. George

Vanderbilt Law School Faculty Publications

As the decisions of the United States Courts of Appeals become an increasingly important part of American legal discourse, the debate concerning adjudication theories of the circuit courts gain particular relevance. Whereas, to date, the issue has received mostly normative treatment, this Article proceeds systematically and confronts the positive inquiry: how do courts of appeals judges actually decide cases? The Article proposes theoretically, tests empirically, and considers the implications of, a combined attitudinal and strategic model of en banc court of appeals decision making. The results challenge the classicist judges, legal scholars, and practitioners' normative frameworks, and suggest positive theory's …

Should Labor Be Allowed To Submit Shareholder Proposals?, Randall Thomas, Kenneth J. Martin

Vanderbilt Law School Faculty Publications

In this Article, we investigate whether labor unions and related entities should be permitted to continue to make shareholder proposals using Rule 14a-8 of the federal securities laws. We focus on the claim that labor is using the shareholder proposal mechanism to further the interests of workers at the expense of other shareholders. In particular, corporate management groups have suggested that when labor is involved in collective bargaining negotiations with management, it should be barred from submitting shareholder proposals because labor proposals seek to further interests not shared by other security holders of the company. Using data on shareholder proposals …

Textualism And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …

Smoke And Mirrors: Understanding The New Scheme For Cigarette Regulation, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Not all the provisions in the proposed legislation favor the states. Others, pertaining primarily to civil liability, are favor able to the financial health of the cigarette industry.

Most important, the legislation would end all present and future actions by state attorneys general. Cigarette companies would escape the potential liability they could face because of an unfavorable ruling about which costs count or because of an unpredictable jury.

The settlement would also preclude all future "addiction" or dependence claims, all class actions, and all claims for punitive damages. Individuals, however, could still sue for past conduct, so that in the …

A Contractarian Defense Of Corporate Philanthropy, Margaret M. Blair

Vanderbilt Law School Faculty Publications

Statutory and case law make it clear that corporate officers and directors have very wide discretion to direct reasonable amounts of corporate resources toward artistic, educational, and humanitarian causes, even if those causes have only a remote connection (or no obvious connection at all) to the business goals and profitability of the firm. This stance of the law has been defended primarily by reference to an "entity" theory of the firm. By contrast, contractarian legal scholars, who view the corporation in terms of a principal-agent model, with shareholders as principles, and officers and directors as their agents, have argued that …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The sharply contested religion cases from Germany in the late 1990s...point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through either inclusion or exclusion from the programs. To fully make sense of government funding and the Establishment Clause, we must consider its …

The Social Costs Of Punitive Damages Against Corporations In Environmental And Safety Torts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Legal scholars and judges have long expressed concerns over the unpredictability and arbitrariness of punitive damages awards. Proposed remedies, such as restricting punitive damages to narrowly defined circumstances, have not yet met with success. This paper addresses the threshold issue of whether, on balance, punitive damages have benefits in excess of their costs. There is no evidence of a significant deterrent effect based on an original empirical analysis of a wide range of risk measures for the states with and without punitive damages. These measures included accident rates, chemical spills, medical malpractice injuries, insurance performance, and other outcomes that should …

Independent Judges And Independent Justice, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Professor Currie's article [See David P. Currie, "Separating Judicial Power", 61 LAW & CONTEMPORARY PROBLEMS 7 (Summer 1998) ] discusses historical attempts to limit judicial independence. I consider the converse: how judges have exercised their independence. This essay provides a brief historical overview of judges using their independence to implement their own view of justice, often contrary to both popular sentiment and legislative will.

Judicial Independence: Playing Politics With The Constitution, Suzanna Sherry

Vanderbilt Law School Faculty Publications

I begin with a question: why have a conference on judicial independence? To find the answer, one need only read the newspapers. Judicial independence-as well as its political counterpart, judicial impeachment-is a hot topic these days because some in Congress have threatened to impeach judges for delivering unpopular decisions. So I take as my subject in this Essay the question of whether the constitutional provisions safeguarding judicial independence protect judges against impeachment for issuing rulings that Congress considers erroneous or even loathsome. When we talk about judicial independence, we have to separate two questions. The first question is the extent …

Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United States.' Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions? In order to understand the question …

Taming The Suburban Amoeba In The Ecosystem Age: Some Do's And Don'ts, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Urban central cities present a host of environmental problems including, but not limited to, industrial pollution, brownfields, smog, and environmental injustice. Rural and agricultural areas also experience environmental degradations such as pesticide runoff, wetlands conversion, and overgrazing. Between these different bands of lifestyle and land use lie the suburbs, which present their own set of environmental policy issues. This Article focuses on one of those problems: the growth of suburban land area and what it means for emerging notions of ecosystem management and sustainable development at the local land use scale. Part I of the Article provides the demographic and …

The Irony Of Deregulatory Takings, Jim Rossi

Vanderbilt Law School Faculty Publications

This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review takes Sidak and Spulber to task for their reading of the case law. In addition, the review criticizes their argument for giving …

Redistribution Through Discriminatory Taxes: A Contractarian Explanation Of The Role Of The Courts, Erin O'Connor

Vanderbilt Law School Faculty Publications

What role should courts serve regarding wealth redistribution through tax provisions? Perhaps they should base decisions on efficiency grounds, protecting society from the transactions costs and other wealth reductions associated with rent seeking. Perhaps they should protect those chosen to bear the burden of discriminatory treatment regardless of social costs, out of fairness concerns for equal treatment. At a minimum, however, the courts should prohibit taxes that would be unanimously condemned ex ante. In this Article, we show, primarily with cases treating progressive taxation, discriminatory property taxes, and taxes on businesses, that the courts have chosen only this third minimalist …

Compensating Differentials For Gender-Specific Job Injury Risks, Joni Hersch

Vanderbilt Law School Faculty Publications

Women have largely been excluded from analyses of compensating differentials for job risk since they are predominantly employed in safer, white-collar occupations. New data reveal that their injury experience is considerable. One-third of the total injury and illness cases with days away from work accrue to female workers. Adjusted for employment, women are 71 percent as likely as men to experience an injury or illness. As one would predict on theoretical grounds, these risks generate compensating differentials. Based on gender-specific injury incidence rates for both industry and occupation, I find strong evidence of compensating wage differentials for the job risk …

"Batson" For The Bench? Regulating The Peremptory Challenge Of Judges, Nancy J. King

Vanderbilt Law School Faculty Publications

The choice of whether to adopt or preserve judicial peremptories should not turn on the resolution of one issue. The risk that such challenges will be used to discriminate between judges on the basis of race must be considered along with the other disadvantages of the challenge and weighed against its potential benefits. Nevertheless, if there is one lesson to be learned from the last few decades of scrutiny of the criminal justice system, it is that discretion can and will be used to discriminate. This difficulty weighs heavily against injecting into our justice system additional discretionary opportunities for litigants …

Exploring The Mysteries: Can We Ever Know Anything About Race And Tax?, Beverly I. Moran

Vanderbilt Law School Faculty Publications

The politics behind tax legislation are explored in order to demonstrate that, rather than being surprising or unexpected, it is easily predictable that federal tax laws would favor whites over blacks.

The Manipulation Of Legal Remedies To Deter Suits By Survivors Of Childhood Sexual Abuse, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

Freeing Prisoners' Labor, Stephen P. Garvey

Cornell Law Faculty Publications

Although labor was central to the internal life of the early penitentiary, it has virtually vanished from today's prison. In this article, Professor Garvey proposes making labor once again a key part of the prison regime. During the decades surrounding the turn of the century, organized labor and business successfully lobbied for protectionist state and federal legislation that prohibited private firms from contracting for prison labor and selling prison-made goods on the open market. This legislation abolished the old "contract" system of prison labor and replaced it with the "state-use" system. Under the state-use system, inmates work only for the …

Property As Propriety, Gregory S. Alexander

Cornell Law Faculty Publications