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Sustainable Development Law & Policy

No abstract provided.

Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris

University of Michigan Journal of Law Reform

The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specfic structural …

Plurality Of Political Opinion And The Concentration Of The Media, Maurice Stucke

Book Chapters

No abstract provided.

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd

Law Faculty Scholarship

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are …

Coase And The Constitution: A New Approach To Federalism, F.E Guerra-Pujol

Richmond Journal of Law and the Public Interest

This paper proposes a new approach to the centuries-old question of federalism. In a word, we approach the problem offederalism from a Coasian or property-rights perspective. That is, instead of attempting to draw an arbitrary boundary line between state and federal spheres of power through traditional legal or semantic analysis of the constitution and previous judicial precedents, this paper proposes the creation of alternative 'federalism markets" in which governmental powers and functions would be allocated to Congress, the states, or even private firms through decentralized auction mechanisms and secondary markets. The paper is divided into five parts. Following a brief …

Review Of Arthur Ripstein, Force And Freedom, Andrew Botterell

Law Publications

No abstract provided.

Punctuated Equilibrium: A Model For Administrative Evolution, 44 J. Marshall L. Rev. 353 (2011), Mark C. Niles

UIC Law Review

No abstract provided.

The Endowment Effect In Ip Transactions: The Case Against Debiasing, Ofer Tur-Sinai

Michigan Telecommunications & Technology Law Review

This Article contains a critical discussion of recent studies by Christopher Buccafusco and Christopher Sprigman concerning the role of the endowment effect in intellectual property transactions. According to the thesis presented in these studies, the existence of an endowment effect in the markets for IP goods causes inefficiencies. In order to counteract such inefficiencies, the authors argue, IP rights must be weakened in various ways, including shifting toward liability rules, adding formalities in copyright law, and expanding the fair use doctrine. The thesis as presented is groundbreaking and would have broad implications. This Article, however, points out several shortcomings of …

Conflict Of Norms Or Conflict Of Laws?: Different Techniques In The Fragmentation Of International Law, Ralf Michaels, Joost H.B. Pauwelyn

Faculty Scholarship

One of the most pressing topics in current international law is fragmentation. Traditionally, most constructive attempts to deal with fragmentation have been based on analogies what one of us, in an earlier book, called "conflicts of norms" - those rules in domestic law that deal with conflicts of norms within one legal system. In this article, we assess under what circumstances a different approach, based on an analogy to conflict of laws - those rules in domestic law that deal with conflicts of norms between different legal systems - yields a more adequate structure. The result is that public international …

Securities Class Actions As Public Law, James D. Cox

Faculty Scholarship

The Political Economy of Fraud on the Market provides a wide-ranging criticism of and thoughtful reforms for securities class actions....However, both their critique of contemporary class actions and their model of the reforms they propose leave unexamined a good many matters relevant to both the criticism and reform of securities class actions....Bratton and Wachter earn high marks for being less passionate and much more thoughtful than others in the chorus calling for reform; indeed, their observations are among the most thoughtful to be found in this area. Nonetheless, their analysis is incomplete in many important areas, and in addition to …

From Enlightened Positivism To Cosmopolitan Justice: Obstacles And Opportunities, Steven Ratner

Book Chapters

This paper explores the possibilities for linkages between various forms of positivism accepted by many international lawyers and various forms of cosmopolitanism advocated by scholars of global justice. Building on Bruno Simma's conception of "enlightened positivism," it identifies areas in which cosmopolitan trends have already seeped into the fabric of international law and the key gaps between positivist and cosmopolitan visions of international law and the international community. Emphasizing the contributions that philosophical inquiry can add to international legal scholarship, and vice-versa, it concludes with some thoughts on further integration of cosmopolitan thinking into positivist methodologies.

Irs's Recent Uncertain Tax Positions Initiative: A Tangle Of Accounting, Tax And Privilege Issues, 9 Depaul Bus. & Comm. L.J. 401 (2011), Kathryn J. Kennedy

UIC Law Open Access Faculty Scholarship

Given the extremely limited source of resources available to the IRS in recent years, it's not surprising that it is exploring all sorts of avenues to increase its efficiency, particularly relying on corporate taxpayers to self report questionable tax positions. Under the banner of "corporate governance" and "transparency," the Service issued a series of proposals in 2010 requiring disclosure of uncertain tax positions ("UTPs") by corporate taxpayers. The Service essentially piggybacked on the recently imposed 2006 audit requirements that reserves be posted for contingent tax liabilities (i.e., tax positions that could later not be sustained, and therefore had to be …

The "R-Word": A Tribute To Derrick Bell, Kenneth B. Nunn

University of Florida Journal of Law & Public Policy

No abstract provided.

Allotment Of Justice: How U.S. Policy In Indian Country Perpetuates The Victimization Of American Indians, Elise Helgesen

University of Florida Journal of Law & Public Policy

No abstract provided.

Negotiating Social Mobility And Critical Citizenship: Institutions At A Crossroads, Michelle D. Deardorff, Angela Mae Kupenda

University of Florida Journal of Law & Public Policy

No abstract provided.

The Internal Revenue Code And Latino Realities: A Critical Perspective, Leo P. Martinez, Jennifer M. Martinez

University of Florida Journal of Law & Public Policy

No abstract provided.

Fostering Race-Related Dialogue: Lessons From A Small Seminar, Jonathan R. Cohen

University of Florida Journal of Law & Public Policy

No abstract provided.

Talking About Race And Equality, Sharon E. Rush

University of Florida Journal of Law & Public Policy

No abstract provided.

Parental Involvement Laws And New Governance, Rachel Rebouché

UF Law Faculty Publications

The stated objectives of parental involvement laws are to protect the health and well-being of minors and to encourage dialogue between parents and adolescents about pregnancy options. Yet decades of studies urge that parental involvement laws do not meet these purposes. Adding to this research, a new ethnography of professionals who implement parental involvement statutes seeks to demonstrate how notice and consent laws and the judicial bypass work in practice. Over the last two years, a non-profit organization, the National Partnership for Women & Families, interviewed 155 lawyers, advocates, judges, health care providers, and court clerks who assist minors in …

What Kind Of Environment Do We Owe Future Generations?, Neil H. Buchanan

UF Law Faculty Publications

Despite widely held beliefs that current generations bear heavy obligations to look out for the welfare of future generations, the philosophical case in support of such intergenerational obligations is surprisingly tentative. Moreover, quantifying any such obligations is subject to even greater uncertainty. Even so, current generations bring future generations into existence in the knowledge that doing so will put a claim on resources that could have been used to reduce suffering among people who are already alive. The choice to allow living people to suffer and die, and instead to bring forth more people in the future, thus implies a …

Good Deficits: Protecting The Public Interest From Deficit Hysteria, Neil H. Buchanan

UF Law Faculty Publications

President Obama has come under increasingly fierce criticism for the size of the federal budget deficit, as both Democratic and Republican politicians loudly proclaim that federal spending should be cut. This article explains why such anti-deficit fervor is misguided and simplistic, and why, perhaps counter-intuitively, cutting government spending can hurt the country, rather than help it, in both the short run and the long run. In the short run, cutting deficit spending can be disastrous to the economy, especially if the economy is already in decline. In addition, because the federal budget fails to separate spending that provides long-term benefits …

Harry Potter And The Trouble With Tort Theory, Scott Hershovitz

Articles

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: they are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort's substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law. The problem is particularly acute for economists. They …

Corrective Justice For Civil Recourse Theorists, Scott Hershovitz

Articles

Though I think the civil recourse critique of the leading conceptions of corrective justice is in some respects misguided, I do not want to join up to the thrust and parry here. My aim in this Article is to show that there is a better conception of corrective justice than the ones that Goldberg and Zipursky target, that this conception of corrective justice is untouched by the civil recourse critique, and that civil recourse is best understood as a corrective justice account of tort. In other words, I aim to explain corrective justice for civil recourse theorists.

Cultivating Justice For The Working Poor: Clinical Representation Of Unemployment Claimants, Colleen F. Shanahan

Faculty Scholarship

The combination of current economic conditions and recent changes in the United States' welfare system makes representation of unemployment insurance claimants by clinic students a timely learning opportunity. While unemployment insurance claimants often share similarities with student attorneys, they are unable to access justice as easily as student attorneys, and as a result, face the risk of severe poverty. Clinical representation of unemployment claimants is a rich opportunity for students to experience making a difference for a client, and to understand the issues of poverty and justice that these clients experience along the way. These cases reveal that larger lessons …

Building A Collaborative Digital Collection: A Necessary Evolution In Libraries, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Law libraries are losing ground in the effort to preserve information in the digital age. In part, this is due declining budgets, user needs, and a caution born from the great responsibility libraries feel to ensure future access instead of selecting a form that may not survive. That caution, though, has caused others, such as Google, to fill the silence with their vision. Libraries must stand and contribute actively to the creation of digital collections if we expect a voice in future discussion. This article presents a vision of the start of a collaborative, digital academic law library, one that …

Biological Metaphors For Whiteness: Beyond Merit And Malice, Brant T. Lee

Akron Law Faculty Publications

The problem of persistent racial inequality is grounded in a failure of imagination. The general mainstream conception is that unfair racial inequality occurs only when there is intentional racism. Absent conscious racial malice, no racism is seen to exist. The only generally available alternative explanation for racial inequality is the meritocratic system. Viewing the distribution of resources as a product of a generally fair meritocratic system provides a defense against any charge of racism, and justifies the status quo.

But in economics, business, computer science, and even biology, observers of complexity are coming to understand how dominant systems can prevail …

Health Insurance Reform And Intimations Of Citizenship, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This article considers the implications of the Patient Protection and Affordable Care Act (PPACA) for social meanings of civic belonging in American society and for possible new forms of individual engagement with the health care system. Once fully implemented, PPACA will have many of the governance characteristics of other social insurance systems, in that it will define membership in a collective undertaking, establish a mechanism for collective security against a shared risk, and channel, incentivize and penalize specific behaviors. The article considers the extent to which PPACA has the potential to also produce new narratives and understandings of social solidarity …

Tragic Rights: The Rights Critique In The Age Of Obama, Robin West

Georgetown Law Faculty Publications and Other Works

This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three-pronged rights critique-–that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community--was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development.

The rights critique continues to be relevant today, because Obama-era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate the pathologies of …

Against Flexibility, David A. Super

Georgetown Law Faculty Publications and Other Works

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that …

Feminist Legal Theory As Embodied Justice, Roxanne Mykitiuk, Isabel Karpin

Articles & Book Chapters

This chapter examines a shift within feminist legal theory from a central concern with sexual difference to one of embodied difference. The subject at the center of this theorizing is marked by bodily (as opposed to sexual) difference from the normative, self-actualizing individual of legal subjecthood. Bioethical and biotechnological inquiries too are concerned with bodily differentiation. Bodies discussed in these contexts are often anomalous or pathologized. They are brought under scrutiny, when they deviate from what is often regarded as "normal," that which is both valorized for its "species typicality" and, by extension, held out as the "natural" state of …