Public Law and Legal Theory Commons^™

Common Law Duty To Serve And Protection Of Consumers, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and …

Concurrent Tribal And State Jurisdiction Under Public Law 280 , Vanessa J. Jimenez, Soo C. Song

American University Law Review

No abstract provided.

On Misusing “Revolution” And “Reform”: Procedural Due Process And The New Welfare Act, Cynthia R. Farina

Cornell Law Faculty Publications

After a long dry spell, the debate over procedural due process flows again. The Supreme Court has announced the first major doctrinal revision in years; Congress has gutted the regulatory program that underlay Goldberg v. Kelly; and Richard Pierce has published an essay in the Columbia Law Review prophesying a radical de-evolution of due process doctrine that will bring constitutional law into line with the profound political and social revolution evidenced by welfare “reform.” My essay takes Professor Pierce's recent work as a springboard for reengaging the debate about the direction of procedural due process. I begin by recapitulating …

Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr

Michigan Law Review

On October 9, 1997, radicals everywhere celebrated the thirtieth anniversary of the death of Che Guevara, the revered Cuban and South American rebel known as much for his guerrilla manifestos as for his scraggly facial hair and the black beret positioned slightly askance. At the same time Latin Americans and revolutionaries were marking the death of their beloved Che, Professors Daniel Farber and Suzanna Sherry were publishing their long-awaited book, Beyond All Reason: The Radical Assault on Truth in American Law. The professors' timing was, unintentionally, quite appropriate. Like many of Che's manifestos, the book sounds an ideological call to …

Public Choice Theory And The Fragmented Web Of The Contemporary Administrative State, Jim Rossi

Vanderbilt Law School Faculty Publications

In the recent book, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (Yale U. Press 1997), Jerry Mashaw addresses the convergence between public choice and administrative law. This review essay summarizes Mashaw's arguments and explores his use of public choice tools. The review suggests that, absent some unifying theoretical perspective for understanding administrative governance outside of public choice method, little more than rampant pessimism or fragmented lessons about the administrative state can be taken.

The Party Expenditure Provision's Near Death Experience: Colorado Republican Federal Campaign Committee V. Federal Election Commission , Robert M. Knop

American University Law Review

No abstract provided.

The Concept Of Compliance As A Function Of Competing Conceptions Of International Law, Benedict Kingsbury

Michigan Journal of International Law

The purpose of this article is to challenge the tendency in the existing literature to view "compliance" simply as "correspondence of behavior with legal rules." This tendency is intelligibly based in a theoretical view that law can properly be defined and understood as a body of rules and expresses a practical concern to get on with the important task of producing empirical studies of compliance. The logical corollary is that a reasonable degree of conformity between these rules and actual behavior is necessary to an efficacious legal system, so that recurrent and widespread non-conformity with rules would usually call into …

State Successions And Statelessness: The Emerging Right To An Effective Nationality Under International Law, Jeffrey L. Blackman

Michigan Journal of International Law

This paper surveys some of the recent developments in international law relating to nationality and state succession, and suggests a growing convergence among several legal principles-specifically the principle of effective nationality, the individual right to a nationality and the corresponding duty of states to prevent statelessness, and the norm of nondiscrimination. At some point this convergence of such diverse areas of law as nationality, diplomatic protection, and human rights will impose positive duties on successor states with respect to their inherited populations: namely the duty to secure effective nationality for persons affected by state succession.

Introductory Remarks: Reflections On Privatization In Higher Education, John V. Lombardi

University of Florida Journal of Law & Public Policy

No abstract provided.

Gratis Dictum! The Limits Of Academic Free Speech On The Internet, Ray August

University of Florida Journal of Law & Public Policy

This article is about the right of university professors to exercise their academic freedom to speak out and to teach in a new forum: the Internet. Although the Internet is a new forum, this article will attempt to show that the same basic rights and duties that apply to professors in the classroom and in the academic media apply to professors speaking out on the Internet. Part I sets the stage with a very brief history of the Internet. Part II examines the principal cases dealing with academic free speech as they relate to the Internet. Most of these cases …

Private Publics, Public Privates: An Essay On Convergence In Higher Education, Richard A. Matasar

University of Florida Journal of Law & Public Policy

Once upon a time, not too long ago, we understood social organization. Parents ran their families. The principal governed the local school with an iron fist and a velvet glove; the school board controlled the principal. People turned to religious leaders for guidance and respected their views. We knew that the President had a private life, but did not find it necessary to read daily press speculations about that life. Greedy bosses exploited professional athletes, studios extracted life-time servitude from performers, and the three television networks controlled access to popular information and entertainment. Every social institution discriminated against women and …

Who Is An "Otherwise Qualified" Law Student? A Need For Law Schools To Develop Technical Standards, J. Patrick Shannon

University of Florida Journal of Law & Public Policy

An increasing number of prospective and current law students are seeking disability-related accommodations under the Americans with Disabilities Act of 1990 (ADA). Various accommodation requests include: extended time on exams (time-and-a-half, double-time, quadruple-time, or no time limit), modification of exams from essay to short-answer, individual testing rooms, modification of all exam from closed-book to open-book, large print exams, the presence of service animals for the sight-impaired and for those with stress disorders, audio/visual recordings of lectures, notetakers, no deadlines for papers, no in-class exercises, not being called upon to respond in class, a stand-up desk on which to write, special …

The First Amendment Threat To Academic Tenure, Daniel E. Hall

University of Florida Journal of Law & Public Policy

Many people have questioned the need for academic tenure. Both higher education literature and the popular press are filled with articles concerning the subject. The article addresses whether tenure continues to be needed as we move into the new millennium. Specifically, the argument that contemporary First Amendment protections make tenure superfluous is examined. Part I describes the history of tenure. The purpose of tenure is examined in part II. Part III examines the law of tenure. Part IV identifies the First Amendment argument in opposition to tenure. In part V the reasons the First Amendment does not obviate the need …

The Decline And Fall Of The Wall Of Separation Between Church And State And Its Consequences For The Funding Of Public And Private Institutions Of Higher Education, F. King Alexander

University of Florida Journal of Law & Public Policy

This article summarizes the evolution of judicial thought concerning the funding of higher education as it pertains to the constitutional concept of separation between church and state. The fiscal consequences of the decline and fall of this wall of separation, as government has increasingly aided private higher education with public resources, are explored. The article notes the ineffectiveness of government student aid policies in providing lower-income students with meaningful choice in pursuing higher education opportunities. The findings presented in this article are not important to higher education alone, but also indicate the probable effects of government funding schemes that aid …

Juvenile Justice Under Attack: An Analysis Of The Causes And Impact Of Recent Reforms, Donna M. Bishop, Lonn Lanza-Kaduce, Charles E. Frazier

University of Florida Journal of Law & Public Policy

The juvenile justice system is currently under attack on two broad fronts. First, legal experts and commentators are providing stinging critiques of the system’s failure to protect the liberty and due process interests of juveniles. Second, legislators throughout the country are supporting more and more legislation designed to “get tough” on juvenile crime. In combination, these criticisms and reforms advance the “recriminalization” of juvenile offenders. Juvenile offenders are increasingly subject to adult standards of culpability and punishment. Most of this change in the way we think about and officially respond to juvenile crime has proceeded without a discussion of the …

The Media In The New Millennium: Exploring Myths And Misconceptions Before Shooting The Messenger, Sandra F. Chance

University of Florida Journal of Law & Public Policy

The press has a crisis of credibility. May believe that the media increasingly violate basic standards of fairness, accuracy, objectivity, and respect for privacy in the rush to profit from sensationalizing sex, scandal, and violence. Criticism often turns into media bashing, as it has become almost derigueur to blame the media for all of society’s ills. Some of the bashing is deserved. Much of it is not. The entire industry is often blamed for the excesses of a few. And, there is a widespread temptation to shoot the messenger who brings the bad news.

Often, this underserved criticism flows from …

Union Dues And Politics: Workers Speak Out Against Unions Speaking For Them, R. Bradley Adams

University of Florida Journal of Law & Public Policy

The purpose of this note is to examine the current movement towards implementing legislation that would require unions to obtain workers’ consent prior to using their compulsory dues and fees for political purposes. Part II is devoted to framing the major developments in the law that have roughly defined the limits of unions’ use of compulsory dues for political purposes. Part III provides an analysis of relevant U.S. Supreme Court cases and emphasizes First Amendment questions surrounding union expenditures of compulsory union dues and fees. Part IV addresses the movement in some states to require unions to obtain affirmative consent …

Speaking Freely About Reducing Violence Against Women: A Harm Reduction Strategy From The Law And Social Science Of Pornography, Michelle Chernikoff Anderson

University of Florida Journal of Law & Public Policy

This article exposes legal scholars to the research essential to establishing support for an education policy that would inoculate our children against the potentially harmful effects of consuming media that promote violence against girls and women. It argues that Dworkin-MacKinnonites, concerned about pornography, and civil libertarians, concerned about free speech, should waste neither more time nor more ink debating this issue. Rather, it is time to dedicate our efforts to creating and implementing a harm reduction educational approach to protect our children against pornography.

Part II defines the terminology used throughout the article. Part III outlines the failures of current …

Origins And Scope Of The American Moral Obligation Principle , Kevin M. Teeven

Cleveland State Law Review

The existence of the moral obligation principle in American case law has been recognized in the Restatement (Second) of Contracts section 86 (1): "A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice." Among common law countries, American jurisdictions are unique in recognizing this ameliorating doctrine. An analysis of the development and scope of this doctrine is buried in the centuries of case law surrounding the tension between the past consideration rule and the moral obligation principle. The intent of this study is to glean …

Transferred Intent: An Inquiry Into The Nature Of Criminal Culpability, Anthony M. Dillof

Law Faculty Research Publications

No abstract provided.

The Gift Of Language, Joseph Vining

Articles

Style and substance cross-are genetically related as we now might want to say. Each draws on and is implied by the other. One point at which they cross is our sense of the nature of human language, what language is and can be, what it is not and can never be. The language of law is part of human language. Law is a distinctive form of thought, but it lives in human language. "Rule" might be thought synonymous with "law," but for all its talk of rules, the practice of law does not begin with a descriptive statement, or a …

Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog

Articles

I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down …

Logic And Elements. (Premises And Conclusions: Symbolic Logic For Legal Analysis)." , Richard D. Friedman

Articles

We may happily agree with Holmes that logic is not the life of the law' and yet contend that logic should play a significant role in legal discourse. Logic cannot demonstrate the truth of premises, and so by itself it cannot demonstrate the merits of a legal argument. Moreover, even given the premises, it may be that a leap of faith, or intuition, has an irreducible role at least in some good legal arguments.2 But at least a sound legal argument will not be an illogical one. An argument will not be persuasive if it appears to violate basic principles …

Commentary On Presentations Of Prof. Roberta S. Karmel & Prof. James A. Fanto, Gregory S. Alexander

Cornell Law Faculty Publications

The Fall And Rise Of Criminal Theory, George P. Fletcher

Faculty Scholarship

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues.

The contributions of this symposium …

Foreigners In Their Own Land: Cultural Land And Transnational Corporations---Emergent International Rights And Wrongs, Martin A. Geer

Scholarly Works

Unique and vital components of human culture and the environment are struggling for survival in the Amazon River basin. The rain forest of Amazonia is shared by indigenous peoples and an immensely diverse tropical flora and fauna. This unique culture and physical ecology, however, is threatened by transnational oil corporations which are irreparably devastating Amazonia and its native cultures through oil production activities.

The failure of public international law to address the post World War II emergence of transnational corporations (TNCs) as a major international force has been the subject of significant review by scholars and policy makers. TNCs, often …

Three Positivisms, Robin West

Georgetown Law Faculty Publications and Other Works

In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the …

Enforcement And The Evolution Of Cooperation, George W. Downs

Michigan Journal of International Law

The purpose of this article is to broadly characterize the political economy or institutionalist theory of enforcement and to present data that is at least a first step toward evaluating the managerial and transformationalist critiques. The first section will present a short, schematic summary of the role of enforcement as it is currently viewed in the "new institutions" or political economy literature in international relations. While doubtless familiar to many readers, this is an important point of departure. A notable portion of the debate about the role of enforcement continues to stem from differences in terminology and from the fact …

Mustering The Moxie To Master The Media Mess, Robert C.L. Moffat

University of Florida Journal of Law & Public Policy

No abstract provided.

"Stunt Journalism," Professional Norms, And Public Mistrust Of The Media, David A. Logan

University of Florida Journal of Law & Public Policy

No abstract provided.