Public Law and Legal Theory Commons^™

Private Standards Organizations And Public Law, Peter L. Strauss

Faculty Scholarship

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 …

Private Lawyer In Disguise? On The Absence Of Private Law And Private International Law In Martti Koskenniemi’S Work, Ralf Michaels

Faculty Scholarship

No abstract provided.

Bretton Woods 1.0: A Constructive Retrieval For Sustainable Finance, Robert C. Hockett

Cornell Law Faculty Publications

Global trade imbalance and domestic financial fragility are intimately related. When a nation runs persistently massive current account deficits to maintain global liquidity as has the United States now for decades, its central bank effectively relinquishes exchange rate flexibility to become a de facto central bank to the world. That in turn prevents the bank from playing its essential credit-modulatory role at home, at least absent strict capital controls that are difficult to administer and have long been taboo. And this can in turn render credit-fueled asset price bubbles and busts all but impossible to prevent, irrespective of the nation's …

Random, Suspicionless Searches Of Students' Belongings: A Legal, Empirical, And Normative Analysis, Jason P. Nance

University of Colorado Law Review

This Article provides a legal, empirical, and normative analysis of an intrusive search practice used by public school officials to prevent school crime: random, suspicionless searches of students' belongings. First, it argues that these searches are not permitted under the Fourth Amendment unless schools have particularized evidence of a substance abuse or weapons problem. Second, it provides a normative evaluation of strict security measures in schools, especially when they are applied disproportionately to minority students. Third, drawing on recent restricted data from the U.S. Department of Education's School Survey on Crime and Safety, this Article provides empirical findings that raise …

Where Do The Prophets Stand?: Hamdi, Myth And The Master's Tools, Linda H. Edwards

Scholarly Works

No abstract provided.

Natalie Stoljar’S Wishful Thinking And One Step Beyond: What Should Conceptual Legal Analysis Become?, Imer Flores

Georgetown Law Faculty Publications and Other Works

Praising wishful thinking is a serious risk that the author is willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in his scholarship. The author will analyze her claims and will agree mostly with them, he will also criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. The author intends to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects …

Liberal Responsibilities, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality by Corey Brettschneider (2012) and Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming & Linda C. McClain (2013).

In a parallel fashion, Fleming and McClain articulate and then defend a general conception of “constitutional liberalism” and its core individual rights against various critics, including communitarians such as Mary Ann Glendon and Michael Sandel, and “minimalists” such as Cass Sunstein and Jeremy Waldron, who argue that for various reasons those individual rights have undermined either civic society …

Political And Constitutional Obligation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Law & Economics Working Papers

Beginning in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of “essential health benefits.” Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. HHS nonetheless announced its policy on essential health benefits by posting on its website a 13-page bulletin stating that it would allow each state to define essential benefits for itself by choosing a “benchmark” plan modeled on existing plans in the state. On …

Mobilizing Law For Justice In Asia: A Comparative Approach, Frank W. Munger, Scott Cummings, Louise Trubek

Articles & Chapters

This article offers a comparative framework for studying why and how law is mobilized to advance justice claims by marginalized groups in Asia. In it, we build upon a series of collaborative exchanges between practitioners and scholars on the role of social justice lawyers in eleven Asian countries: Bangladesh, China, India, Indonesia, Malaysia, Mongolia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. Based on lessons from this collaboration, we suggest that one way to understand variation in the type and scope of legal mobilization for the politically weak is in relation to two important domestic factors: political openness and autonomy of law. …

Emerging Issues In Media And Communications Law, Craig D. Feiser

University of Florida Journal of Law & Public Policy

No abstract provided.

A False Choice: Prior Restraint And Subsequent Punishment In A Wikileaks World, Alexander E. Blanchard

University of Florida Journal of Law & Public Policy

No abstract provided.

Lifting The Dover Ban: The Compromise On Press Access To Fallen Soldiers Returning From War, Jason Zenor

University of Florida Journal of Law & Public Policy

No abstract provided.

The "Friend"Ly Lawyer: Professionalism And Ethical Considerations Of The Use Of Social Networking During Litigation, Nicola A. Boothe-Perry

University of Florida Journal of Law & Public Policy

No abstract provided.

Milwaukee Radio Public File Data, 1998-2011: An Empirical Analysis Of Issue Advertising After The Bcra And Citizens United, Christopher Terry, Mitchell Bard

University of Florida Journal of Law & Public Policy

No abstract provided.

There Is No App For That: The Need For Legal Educators And Practitioners To Comply With Ethical Standards In The Digital Era, Katerina P. Lewinbuk

University of Florida Journal of Law & Public Policy

No abstract provided.

Speaking Freely On Public Issues: Criminal Suspects As Involuntary Limited-Purpose Public Figures, Daniel Thomas Pesciotta

University of Florida Journal of Law & Public Policy

No abstract provided.

Exacerbating The Divide: Why The Roberts Court's Recent Same-Sex Jurisprudence Is An Improvident Use Of The Court's Judicial Review Powers, Mohamed Akram Faizer

University of Florida Journal of Law & Public Policy

No abstract provided.

Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne R. Barnes

University of Florida Journal of Law & Public Policy

No abstract provided.

Preserving Miami: An Evaluation Of Miami's Transferable Development Rights Program, Alexis Leventhal

University of Florida Journal of Law & Public Policy

No abstract provided.

Constitional Law: Redefining A "Search" Within The Meaning Of The Fourth Amendment, Vanessa Madrid

University of Florida Journal of Law & Public Policy

No abstract provided.

Rebooting Shield Laws: Updating Journalist's Priviledge To Reflect The Realities Of Digital Newsgathering, Jason A. Martin, Anthony L. Fargo

University of Florida Journal of Law & Public Policy

No abstract provided.

Freeing The Prop 8 Tape: Perry V. Brown, The Presumption Of Access To Civil Proceedings, And The Preservation Of Judicial Integrity, Andrew A. Proia

University of Florida Journal of Law & Public Policy

No abstract provided.

Unenforced Contracts And The Illusion Of Bargaining: The Broken State Of Florida Public Employees' Constitutional Rights, Suzanne Tzuanos

University of Florida Journal of Law & Public Policy

No abstract provided.

Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain

Faculty Scholarship

Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about how policymakers should structure federal administration of the electromagnetic spectrum. The first argues that the Federal Communications Commission should define spectrum use rights more clearly and give spectrum licensees near fee-simple property rights in frequencies that they can use and sell in secondary markets as they wish. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much if not most of the spectrum to unlicensed use by smartphones and tablets equipped with the …

Unbundling Constitutionality, Richard A. Primus

Articles

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are …

Interpersonal Power In The Criminal System, Kimberly A. Thomas

Articles

This Article identifies the workings of interpersonal power in the criminal system and considers the effect of these cases on criminal theory and practice. By uncovering this phenomenon, this Article hopes to spark a legal academic dialogue and inquiry that has, until now, been unspoken. This Article has roots in my former work as a Philadelphia public defender and in my current work as a clinical professor with students who appear in criminal and juvenile court. As an advocate for the poor in a busy courthouse, one of a lawyer's tasks is to discover the multiple "real" stories behind the …

Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.

Durkheim's Internet: Social And Political Theory In Online Society, Ari Ezra Waldman

Articles & Chapters

While the Internet has changed dramatically since the early 1990s, the legal regime governing the right to privacy online and Internet speech is still steeped in a myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility, and radical individuation online, allowing the evisceration of online privacy and the proliferation of hate and harassment.

I argue that the myth of the online anonym is not only false as a …

We Have A Dream: Integrating Skills Courses And Public Interest Work In The First Year Of Law School (And Beyond), Sara Rankin, Lisa Brodoff, Mary Bowman

Faculty Articles

The clinical and legal writing faculty at the Seattle University School of Law are experimenting with collaborative teaching projects that bring real clients and real legal problems into the first year curriculum. These “integrated skills projects” engage first year students with legal writing faculty, clinical faculty, and public interest work. These projects provide first year students with exceptional training in practical skills, generate remarkable student satisfaction, and re-ignite student passion for the practice of law. This essay (1) introduces a “continuum” of integrated legal skills projects, featuring applied examples of activities that range from discrete to more ambitious; (2) surveys …