Open Access. Powered by Scholars. Published by Universities.®

Public Law and Legal Theory Commons™

Open Access. Powered by Scholars. Published by Universities.®

Discipline
Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 2881 - 2910 of 4190

Full-Text Articles in Public Law and Legal Theory

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay Jan 2009

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay

Faculty Articles and Papers

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the original public meaning of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …


Family Classes: Rethinking Contraceptive Choice, Naomi Cahn, June Carbone Jan 2009

Family Classes: Rethinking Contraceptive Choice, Naomi Cahn, June Carbone

University of Florida Journal of Law & Public Policy

No abstract provided.


Home, Rights, And Private Communities, Paul Boudreaux Jan 2009

Home, Rights, And Private Communities, Paul Boudreaux

University of Florida Journal of Law & Public Policy

No abstract provided.


Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan Jan 2009

Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan

UF Law Faculty Publications

As part of the George Washington Law Review's symposium "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century," participants discussed the nature of intergenerational obligations as they relate to fiscal policy. The panelists reached consensus that intergenerational justice is not an appropriate lens through which to analyze fiscal issues, because there is no obvious starting point from which to build a moral consensus about whether current generations owe anything at all to future generations, much less how to quantify any such obligation. In addition, even pessimistic forecasts indicate that future generations will …


What Do We Owe Future Generations?, Neil H. Buchanan Jan 2009

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

UF Law Faculty Publications

In the United States, it is common for legal scholars, economists, politicians and others to claim that we are selfishly harming "our children and grandchildren" by (among many other things) running large government budget deficits. This article first asks two broad questions: (1) Do we owe future generations anything at all as a philosophical matter? and (2) If we do owe something to future generations, how should we balance their interests against our own? The short answers are "Probably" and "We really are not sure." Finding only general answers to these general questions, I then look specifically at U.S. fiscal …


The Invention Of Legal Primitivism, Steven Wilf Jan 2009

The Invention Of Legal Primitivism, Steven Wilf

Faculty Articles and Papers

This Article addresses a different sort of legal transplant - one in which outside legal doctrines are imported in order to be cabined, treated as normative counterpoints, and identified as the legal other. Legal primitivism is a kind of anti-transplant. It heightens the persistent differences between a dominant legal system and its understanding of primitive rules. An often ignored legal literature depicting legal primitivism emerged in the second half of the nineteenth century and in the early twentieth century. Mapping the differences between America’s modern legal system and its antecedents, this immense literature, which included works by Oliver Wendell Holmes, …


Evolutionary Theory And The Origin Of Property Rights, James E. Krier Jan 2009

Evolutionary Theory And The Origin Of Property Rights, James E. Krier

Articles

For legal scholars, the evolution of property rights has been a topic in search of a theory. My aim here is to draw together various accounts (some of them largely neglected in the legal literature), from dated to modern, and suggest a way they can be melded into a plausible explanation of property's genesis and early development. What results hardly amounts to a theory, but it does suggest an outline for one. Moreover, it provides a primer on the subject, a reasonably solid foundation for thinking and talking about the evolution of property rights.


The German Constitutional Court Says 'Ja Zu Deutschland!', Daniel H. Halberstam, Christoph Möllers Jan 2009

The German Constitutional Court Says 'Ja Zu Deutschland!', Daniel H. Halberstam, Christoph Möllers

Articles

In announcing the decision of the Bundesverfassungsgericht (BVerfG - Federal Constitutional Court) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “Das Grundgesetz sagt ‘Ja' zum Vertrag von Lissabon.”


Public Rights, Global Perspectives, And Common Law, Martha F. Davis Jan 2009

Public Rights, Global Perspectives, And Common Law, Martha F. Davis

Fordham Urban Law Journal

This Article sets out the case that common law adjudication involving such claims as contractual breaches, wrongful termination, and tort can be, and often are, public rights litigation. Many common law decisions have significant impacts in the community, and—because of the nature of precedent—become quickly embedded in the law where they contribute to the outcomes of future cases as well. Common law cases are a particularly important aspect of public rights litigation because of the paucity of constitutional protections for economic and social rights. In the absence of constitutional protections for such rights, rigorous enforcement of common law claims addressing …


Mr. Presidential Candidate: Whom Would You Nominate?, Stuart M. Benjamin, Mitu Gulati Jan 2009

Mr. Presidential Candidate: Whom Would You Nominate?, Stuart M. Benjamin, Mitu Gulati

Faculty Scholarship

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will negotiate more effectively with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a secretary of state or a Supreme Court justice can be tremendous. Despite the importance of such appointments, we do not expect candidates to compete on naming the better slates of nominees. For the candidates themselves, avoiding competition over nominees in the pre-election context has personal …


Mechanism Choice, Jonathan B. Wiener, Barak D. Richman Jan 2009

Mechanism Choice, Jonathan B. Wiener, Barak D. Richman

Faculty Scholarship

This chapter reviews the literature on the selection of regulatory policy instruments, from both normative and positive perspectives. It first reviews the mechanism design literature to identify normative objectives in selecting among the menu or toolbox of policy instruments. The chapter then discusses the public choice and positive political theory literatures and the variety of models developed to attempt to predict the actual selection of alternative policy instruments. It begins with simpler early models focusing on interest group politics and proceeds to more complicated models that incorporate both supply and demand for policy, the role of policy entrepreneurs, behavioral and …


The Missing Jurisprudence Of The Legislated Constitution, Robin West Jan 2009

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …


Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian Mccall Jan 2009

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian Mccall

Faculty Articles

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.


An Improved Analytical Framework For The Official Acknowledgment Doctrine: A Broader Interpretation Of “Through An Official And Documented Disclosure”, Jessica Fisher Jan 2009

An Improved Analytical Framework For The Official Acknowledgment Doctrine: A Broader Interpretation Of “Through An Official And Documented Disclosure”, Jessica Fisher

NYLS Law Review

No abstract provided.


Reshaping The Common Good In Times Of Public Health Emergencies: Validating Medical Triage, George P. Smith Ii Jan 2009

Reshaping The Common Good In Times Of Public Health Emergencies: Validating Medical Triage, George P. Smith Ii

Scholarly Articles

Public health ethics require individuals who are inherently at risk for transmitting communicable disease to be subjected, oftentimes, to isolation, quarantine, or compulsory vaccination - all undertaken, as such, to protect the common good and thereby secure the public-at-law for exposure to the spread of an infectious disease.

This article tests the extent to which public health emergencies necessitate a reinterpretation or reshaping of the common good and proceeds to analyze the extent to which the medical principle of triage is a relevant construct for allocating scarce medical resources during contemporary public health emergencies. The article proceeds to test the …


The Guide For Future Preservation In Historic Districts Using A Creative Approach: Charleston, South Carolina's Contextual Approach To Historic Preservation, Hunter S. Edwards Jan 2009

The Guide For Future Preservation In Historic Districts Using A Creative Approach: Charleston, South Carolina's Contextual Approach To Historic Preservation, Hunter S. Edwards

University of Florida Journal of Law & Public Policy

No abstract provided.


Raid Of The Masses: How The Seizure Of Flds Children Supports Applying The Traditional Criminal Law Exigent Circumstances Exception In The Child Removal Context, Lorna Cobb Jan 2009

Raid Of The Masses: How The Seizure Of Flds Children Supports Applying The Traditional Criminal Law Exigent Circumstances Exception In The Child Removal Context, Lorna Cobb

University of Florida Journal of Law & Public Policy

No abstract provided.


Denmark Energy Policy: Success In Achieving Energy Independence And Establishing An International Wind Energy Industry, Jeremy Mcbryan Jan 2009

Denmark Energy Policy: Success In Achieving Energy Independence And Establishing An International Wind Energy Industry, Jeremy Mcbryan

University of Florida Journal of Law & Public Policy

No abstract provided.


Habeas Corpus: What The Closing Of Guantanamo Bay Means For Future Challenges To Executive Detention From Abroad, Jay A. Yagoda Jan 2009

Habeas Corpus: What The Closing Of Guantanamo Bay Means For Future Challenges To Executive Detention From Abroad, Jay A. Yagoda

University of Florida Journal of Law & Public Policy

No abstract provided.


Foreword, Nancy E. Dowd Jan 2009

Foreword, Nancy E. Dowd

University of Florida Journal of Law & Public Policy

No abstract provided.


Reflections On Loving And Children's Rights, Barbara Bennett Woodhouse, Kelly Reese Jan 2009

Reflections On Loving And Children's Rights, Barbara Bennett Woodhouse, Kelly Reese

University of Florida Journal of Law & Public Policy

No abstract provided.


The State As Batterer: Learning From Family Law To Address America's Family-Like Racial Dysfunction, Angela Mae Kupenda Jan 2009

The State As Batterer: Learning From Family Law To Address America's Family-Like Racial Dysfunction, Angela Mae Kupenda

University of Florida Journal of Law & Public Policy

No abstract provided.


Collaborative Law: A New Tool For The Lawyer's Toolkit, Susan Daicoff Jan 2009

Collaborative Law: A New Tool For The Lawyer's Toolkit, Susan Daicoff

University of Florida Journal of Law & Public Policy

No abstract provided.


What's So Great About Sograt?: An Analysis Of The Ethical Issues Created By Tax Patents And A Patently Strict Dilemma, Jason Pill Jan 2009

What's So Great About Sograt?: An Analysis Of The Ethical Issues Created By Tax Patents And A Patently Strict Dilemma, Jason Pill

University of Florida Journal of Law & Public Policy

No abstract provided.


Internet-Television, Peer-To-Peer Technology And Free Speech: Lessons From Web 1.0, Mark R. Caramanica Jan 2009

Internet-Television, Peer-To-Peer Technology And Free Speech: Lessons From Web 1.0, Mark R. Caramanica

University of Florida Journal of Law & Public Policy

No abstract provided.


Stopping For Death: Re-Framing Our Perspective On The End Of Life, Ruth C. Stern, J. Herbie Difonzo Jan 2009

Stopping For Death: Re-Framing Our Perspective On The End Of Life, Ruth C. Stern, J. Herbie Difonzo

University of Florida Journal of Law & Public Policy

No abstract provided.


Personalizing First Amendment Jurisprudence: Shifting Audiences & Imagined Communities To Determine Message Protection In Obscenity, Fighting Words, And Defamation, Clay Calvert Jan 2009

Personalizing First Amendment Jurisprudence: Shifting Audiences & Imagined Communities To Determine Message Protection In Obscenity, Fighting Words, And Defamation, Clay Calvert

University of Florida Journal of Law & Public Policy

No abstract provided.


The Father's Rights Movement, Law Reform, And The New Politics Of Fatherhood: Some Reflections On The Uk Experience, Richard S. Collier Jan 2009

The Father's Rights Movement, Law Reform, And The New Politics Of Fatherhood: Some Reflections On The Uk Experience, Richard S. Collier

University of Florida Journal of Law & Public Policy

No abstract provided.


Stare Decisis: Broadening The Scope Of The Judiciary's Power, Stacey Waldorf Jan 2009

Stare Decisis: Broadening The Scope Of The Judiciary's Power, Stacey Waldorf

University of Florida Journal of Law & Public Policy

No abstract provided.


The Cost Of A Countermeasure: The Expansive Liability Protection Of The Public Readiness And Emergency Preparedness Act Of 2005, Angela Marino Jan 2009

The Cost Of A Countermeasure: The Expansive Liability Protection Of The Public Readiness And Emergency Preparedness Act Of 2005, Angela Marino

University of Florida Journal of Law & Public Policy

No abstract provided.