Public Law and Legal Theory Commons^™

Supra Synopses, Ryan W. Dumm, Laura Turczanski

Seattle University Law Review Online

No abstract provided.

State Action Problems, Christian Turner

Scholarly Works

The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, like the Supreme Court did in Shelley v. Kraemer, are either vastly overinclusive or fail to explain our law and values. A better approach is to understand the state action doctrine in institutional terms. I introduce a two-step, institutionally focused state action theory that is a natural consequence of a broader public/private theory of legal systems. In the first step, a court identifies a “state action problem,” meaning a privately made law that …

Shallow Signals, Bert I. Huang

Faculty Scholarship

Whether in dodging taxes, violating copyrights, misstating corporate earnings, or just jaywalking, we often follow the lead of others in our choices to obey or to flout the law. Seeing others act illegally, we gather that a rule is weakly enforced or that its penalty is not serious. But we may be imitating by mistake: what others are doing might not be illegal – for them.

Whenever the law quietly permits some actors to act in a way that is usually forbidden, copycat misconduct may be erroneously inspired by the false appearance that "others are doing it too." The use …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi

Faculty Scholarship

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic …

Emerging Technologies And Dwindling Speech, Jorge Roig

Scholarly Works

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, …

Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston

All Faculty Publications

This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …

The Special Supplemental Nutrition Program For Women, Infants, And Children (Wic) And The Supplemental Nutrition Assistance Program (Snap): Comparing Policies And Suggesting Changes, Regina T. Cucurullo

Journal of Food Law & Policy

National concerns, such as obesity, should be addressed through national efforts. Considering the national reach of the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) and the Supplemental Nutrition Assistance Program (SNAP) and their ability to influence the diets of a significant amount of the nation's population, changes to these programs should be made to encourage healthy nutrition.

Food And Agricultural Security Strategy And Its Implementation Under Public Health Security And Bioterrorism Preparedness And Response Act Of 2002, Vivek V. Nemane

Journal of Food Law & Policy

The U.S. agricultural system can be described as concentrated, specialized and industrialized. A typical food chain generally involves agricultural production, storage, processing and distribution. In the U.S. agricultural and food system, most production, distribution and processing is done in a consolidated and centralized manner.

Food Sovereignty In The United States: Supporting Local And Regional Food Systems, Allison Condra

Journal of Food Law & Policy

Today, perhaps more than ever, an increasing portion of U.S. society is paying attention to and asking questions about our food and agricultural system. We are recognizing the immense consequences of the agricultural "efficiencies" we valued and wrote into our policies in the seventies-for example, growing corn "fence row to fence row" and the ease of microwaved meals and prepackaged foods. 3 The increasingly global nature of our food system and its consequences are becoming more apparent. Food safety concerns-prompted by a growing number of foodborne illness outbreaks and the government's response in the 2009 Food Safety Modernization Act-loom large …

The Real Toy Story: The San Francisco Board Of Supervisors Healthy Food Incentives Ordinance, Cortney Price

Journal of Food Law & Policy

Obesity among children in the United States has tripled over the last thirty years. Incidentally, the world's largest fast food restaurant, McDonald's, first introduced its children's Happy Meal thirty-two years ago. Shortly thereafter, the first Disney inspired toy found its way into Happy Meals and the hearts of the "billions and billions served." Although the iconic Happy Meal and accompanying toy have become "a staple of Americana akin to baseball and apple pie," the continued existence of the practice is being threatened in light of the powerful influence toys have on children's food choices, thus contributing to the current obesity …

Cash, Crops, Chemicals, And Cosmetics: A Mid-Green Eco-Labeling Approach, Michael T. Olexa, R. Benjamin Lingle, Kimberly Stewart, Damian C. Adams

Journal of Food Law & Policy

The United States Department of Agriculture (USDA) uses grade standards to uniformly characterize the quality and condition of agricultural commodities. The standards are promulgated by the USDA's Agricultural Marketing Services (AMS) division in consultation with farming industry groups. Emphasizing produce attributes such as surface defects, shape, cleanliness, color, maturity, and decay, grade standards improve the marketability of agricultural commodities by establishing a common industry language for use in contracts. Use of such a language enables wholesale buyers to know the quality of commodities without first having to inspect them, thus facilitating trade by lowering transaction costs.

Access And The Public Domain, Randal C. Picker

San Diego Law Review

[T]his Article sketches out the emerging public domain. Part III considers three conceptual questions for structuring use of the public domain, focusing on the extent to which the public domain should be viral; on whether we should insist that the public domain be accessed only through the original artifacts embodying it; and on whether private appropriability incentives for distribution of public domain scans match overall social interests. Part IV turns to the tools for restricting use of the public domain, to copyright, contract, the DMCA, and the CFAA. Each of these matters for access to the public domain and for …

The Offender And The Victim, Edward Tromanhauser

Pepperdine Law Review

No abstract provided.

Methods Of Compensating Victims Of War: Combating The Problems Of An Enduring System, Bryan S. Hance

Pepperdine Law Review

No abstract provided.

Crime Victims' Rights -- A Legislative Perspective, William Van Regenmorter

Pepperdine Law Review

No abstract provided.

Emerging Issues In Victim Assistance, Marlene A. Young

Pepperdine Law Review

No abstract provided.

Progress In The Victim Reform Movement: No Longer The "Forgotten Victim", David L. Roland

Pepperdine Law Review

No abstract provided.

The Elevation Of Victims' Rights In Washington State: Constitutional Status, Ken Eikenberry

Pepperdine Law Review

No abstract provided.

Victims' Rights: An Idea Whose Time Has Come--Five Years Later: The Maturing Of An Idea, Frank Carrington, George Nicholson

Pepperdine Law Review

No abstract provided.

Introduction, Ronald F. Phillips

Pepperdine Law Review

No abstract provided.

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

Shifting Seas: The Law's Response To Changing Ocean Conditions, Casey Schickling

Sea Grant Law Fellow Publications

No abstract provided.

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Facebook, The Jobs Act, And Abolishing Ipos, Adam C. Pritchard

Law & Economics Working Papers

The market for initial public offerings (IPOs) — the first sale of private firms’ stock to the public — is notorious for its swings from peaks to valleys. This paper argues that these swings reflect serious flaws in the IPO scheme, and that U.S. capital markets should move toward a more stable alternative. Specifically, this paper argues for a two-tier market system in which new stock issuers initially participate in a less-regulated private capital market of accredited investors and then, if they choose, they can move to a more regulated, broader public market. Likewise, firms currently participating in the public …

The Patient Protection And Affordable Care Act: Why It Is Important For Women’S Health, Mary Fanning

Journal of Interdisciplinary Feminist Thought

President Barack Obama signed into law the Patient Protection and Affordable Care Act (ACA) on March 23, 2010 ending the long history of disparity in access to health care services between insured and uninsured persons. Disparity between women and men in obtaining health insurance coverage is also corrected in the act. Women’s organizations that have focused attention on women’s distinctive health needs over the past century and a half laid the foundation for provisions in the legislation that address women’s health. This article addresses health insurance coverage, its impact on health, the particular challenges women have confronted in seeking coverage, …

Brush, Lisa D.: Poverty, Battered Women, And Work In U.S. Public Policy., Mildred Bates

Journal of Interdisciplinary Feminist Thought

No abstract provided.

Book Review: The Public International Law Regime Governing International Investment, By Jose E. Alvarez, The Hague: Hague Academy Of International Law, Susan Franck

Book Reviews

Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and makes the implicit explicit by considering investment law’s unique, arguably sui generis, hybrid essence that crosses the public and private international law divides. This book review explores Alvarez's primary thesis and his extended exposition …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron

Michigan Law Review

Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …