Public Law and Legal Theory Commons^™

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 …

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 …

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 …

Handshake Deals: The Future Of Informal State Agreements And The Interstate Compacts Clause, Todd Jefferson Hartley

University of Florida Journal of Law & Public Policy

No abstract provided.

The Unenforceable Corrupt Contract: Corruption And Nineteenth Century Contract Law, Zephyr Teachout

Faculty Scholarship

This paper explores the 19th century practice of courts refusing to enforce "corrupt" contracts as against public policy.

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 …

Pornography As Pollution, John Copeland Nagle

Maryland Law Review

No abstract provided.

Beyond Public/Private: Understanding Excessive Corporate Prerogative, John A. Powell, Stephen Menendian

Kentucky Law Journal

This article makes the case against excessive corporate prerogative by revealing ways in which the exercise of corporate power to protect and relentlessly pursue corporate interests subverts our democracy with harmful consequences for democratic accountability, civil rights, human rights, the economy, the environment, privacy, individual freedom and the nation's welfare.

Balance Of Silence: Weighing The Right To Remain Silent Against The Right Of Access To Florida Civil Courts, Matthew C. Lucas

University of Florida Journal of Law & Public Policy

No abstract provided.

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto A. Imoukhuede

University of Florida Journal of Law & Public Policy

No abstract provided.

Remarks On Dealing With Conflict In The Courts And In The Media: Dedication Of The Martin H. Levin Advocacy Center Courtroom, David Westin

University of Florida Journal of Law & Public Policy

No abstract provided.

Lowering Values: The Federal Estate Tax And The American Farmer, Alicia Leanne Taylor

University of Florida Journal of Law & Public Policy

No abstract provided.

Gulf Coast Blowout: How The Bp Oil Spill Is Corroding Communities And What Attorneys & Policymakers Must Do To Stop It, Fay Pappas

University of Florida Journal of Law & Public Policy

No abstract provided.

Applying The Narrow Proportionality Principle To Juvenile Offenders, Daniel Cardenal

University of Florida Journal of Law & Public Policy

No abstract provided.

Perry V. Schwarzenegger: A Judicial Attack On Traditional Marriage, Chad M. Muir

University of Florida Journal of Law & Public Policy

No abstract provided.

Killing The Messenger: The Intersection Between Sex Trafficking, Planned Parenthood & The Marginalization Of Youth Victims, Sarah Primrose

University of Florida Journal of Law & Public Policy

No abstract provided.

Closing The Kitchen? Digensting The Impact Of The Federal Menu Labeling Law In The Affordable Care Act, Lauren Slive

University of Florida Journal of Law & Public Policy

No abstract provided.

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.

L'Interprétation Systémique: Le Liant Du Droit International, Giovanni Distefano, Petros C. Mavroidis

Faculty Scholarship

Systemic Interpretation in International and WTO Law: The Glue of the International Legal Order

The authors endeavour to emphasis the paramount role of systemic interpretation, provided for and codified in Article 31 (3) c) of the 1969 Vienna Convention on the Law of Treaties, in the light of both general international and WTO Law. This short essay ultimately leads to the confirmation that this hermeneutics method accrues by all means to the cementation of the international legal order.

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, …

Hot Crimes: A Study In Excess, Steven P. Grossman

All Faculty Scholarship

Societies appear to be subject, every now and then, to periods of moral panic. . . . [I]ts nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; . . . sometimes the panic passes over and is forgotten . . . at other times it has more serious and long-lasting repercussions and might produce such as those in legal and social policy or even …

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …

The Siren Song Of History: Originalism And The Religion Clauses, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more …