Public Law and Legal Theory Commons^™

Utility And Rights In Common Law Reasoning: Rebalancing Private Law Through Constitutionalization, Hugh Collins

Dalhousie Law Journal

In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem ofjustice in terms ofprotecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres ofprivate law such as consumer law and labour lawfrom mainstream doctrine, …

Reflections On Hope, Erica J. Hashimoto

Scholarly Works

This is an article from a Symposium In Honor of Professor Milner S. Ball. This article describes Professor Ball's dedication towards public interest law and encourages others to join the the fight for justice.

Fighting for a more just society-a society that treats all of its members with dignity and respect-calls for courage, passion, and vision. People with those qualities who choose to work in the public interest will discover the joy of having a "job" that many days is exhilarating and rewarding and often is just plain fun.' There will also, however, be difficult days. Surviving those days and …

The Right Of Access To Justice: Judicial Discourse In Singapore And Malaysia, Gary Chan

Research Collection Yong Pung How School Of Law

This is an essay on judicial discourse in Singapore and Malaysia pertaining to the nature and scope of the right of access to justice, including access to justice for the poor. We will examine the statements and pronouncements by the Singapore and Malaysia judiciary in case precedents and extra-judicial statements. Some of the issues explored include the legal status of this right of access to justice (namely, whether it is a right enshrined in the constitution or merely a right derived from the common law and whether it is qualified by economic and other interests) and the associated rights of …

Help At Your Fingertips: A Twenty-First Century Response To The Pro Se Phenomenon, Van Wormer, Nina Ingwer

Vanderbilt Law Review

In July 2001, Aventis Pharmaceuticals, Inc. fired Susan Hudock, an award-winning sales representative suffering from shingles. Angered and frustrated, Ms. Hudock retained an attorney and filed suit against her former employer, alleging that the company violated the Americans with Disabilities Act by failing to make "reasonable accommodations" that would enable her to perform certain job-related functions. After incurring over $18,000 in legal fees over two years and with no end in sight, Ms. Hudock decided to take a drastic step: she fired her attorney and proceeded with her case pro se.

Despite being warned by her former attorney that she …

Consumption, Development Aid, And Natural Law, Gary Chartier

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert

ExpressO

With cases in the news like the McDonalds case, it has left the public with a very distorted view of the civil justice system. Information about the civil litigation system is critical because citizens report that the news media is their primary source of information about the court system, an even more important source than contact with the courts themselves. With the general public relying primarily on the news media as their source of information, it is necessary to examine what is being reported and the frequency of covering both sides to the story, the true story.

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi

ExpressO

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other – especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused …

Judicializing Federative Power, Richard Broughton

ExpressO

The federal Constitution is ambiguous about federative power, Locke’s description of the power over war and foreign relations. On the one hand, the Constitution is plainly un-Lockean, dividing federative power between Congress and the President and contemplating that they will exercise responsibility, and sometimes competing prerogatives, in war and foreign affairs. Yet there is a rich constitutional and political history in America suggesting that the constitutional scheme is more Lockean than at first blush, even if informal and hidden in complexity. This paper responds to two distinct, but related, lines of argument that seek to limit especially the executive’s Lockean …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

The Hidden Harm Of Law And Economics, Daniel I A Cohen

ExpressO

The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Of Elephants And Embryos: A Proposed Framework For Legal Personhood, Jessica Berg

ExpressO

No abstract provided.

In Defence Of The Supreme Court: A Conservative View, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

The Supreme Court And The Hamiltonian Dilemma, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

The Constitutionality Of The President To Hold Another Office Act, 2004: A View From India, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

Pakistani Supreme Court And Constitutional Space, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

Doomsday: A Look At The Ethical Issues Behind The Government's Coercive Powers In Response To A Public Health Nightmare., Jacob M. Chapman

ExpressO

This article posits a hypothetical scenario in which a deadly pandemic is unleashed upon the United States and the several individuals whom appear to have a natural immunity refuse to participate in necessary research. The article then examines the possible legal and ethical approaches available for reacting to the pandemic.

The hypothetical scenario addressed in this article highlights a gap in current public health law. While various states have laws and procedures relating to quarantine and forced inoculation, these laws and procedures do not suggest whether the state may or may not coerce non-threatening individuals into participating in potentially dangerous …

Prosecutors: Factors To Aid Your Filing Decisions With Respect To Fatal Traffic Collisions, Kimberly Rebecca Bird

ExpressO

As you may know, on a fairly regular basis, prosecutors are faced with filing decisions with respect to fatal traffic collisions. Many of them, of course, do not involve criminal negligence and are not prosecuted as crimes. Sometimes, on the other hand, the circumstances are egregious and the decision to be made is whether to file a case as a vehicular manslaughter or as a murder, on an implied malice theory. There are a finite number of California Supreme Court and Court of Appeal cases (beginning with People v. Watson (1981) 30 Cal.3d 290) that have addressed the sufficiency of …

Foia Anniversary Display, St. Mary's University, Texas

Democracy/Government

Bibliography and photographs of a display of government documents from St. Mary's University, Texas.

Cumberland County Jail 2005 Pre-Arraignments, George Shaler Mph

Maine Statistical Analysis Center

This brief addresses the following questions: 1. What do we know about bookings of arrested persons at the Cumberland County Jail? 2. What do we know about pre-arraignment bookings by Cumberland County law enforcement agencies? In 2006, Cumberland County hired the Muskie School of Public Service to help provide information for county planning purposes. The Muskie School examined the rates of all bookings¹ (including pre-arraignment bookings) originated by all county law enforcement agencies to the jail in 2005.

Over the last ten years the average population in county jails has increased dramatically in Maine. In 2003, the total in-house population …

The Third Death Of Federalism, A. Christopher Bryant

Faculty Articles and Other Publications

Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …

Banning Smoking In Chicago's Social Scene: Protecting Labor And Broadening Public Health Policy, 40 J. Marshall L. Rev. 1063 (2007), Adrienne Detanico

UIC Law Review

No abstract provided.

Curing The Bop Plague With Booker: Addressing Inadequate Medical Treatment In The Bureau Of Prisons, 41 J. Marshall L. Rev. 219 (2007), Natalie Hinton

UIC Law Review

No abstract provided.

Justice, And Only Justice, You Shall Pursue: Network Neutrality, The First Amendment And John Rawls's Theory Of Justice, Amit M. Schejter, Moran Yemini

Michigan Telecommunications & Technology Law Review

As broadband becomes the public's technology of choice to access the Internet, it is also emerging as the battlefield upon which the struggle for control of the Internet is being fought. Operators who provide physical access to the service claim the right to discriminate among the content providers who use the infrastructure in which the operators have invested. In contrast, content providers warn that exercising such a policy would "undermine the principles that have made the Internet such a success."[...] For academic observers, analysis of this issue has thus far been confined to the areas of property law, innovation, and …

Putting The "Public" Back Into Public-Private Partnerships For Economic Development, Audrey Mcfarlane

All Faculty Scholarship

Public-Private Partnerships are viewed quite positively. In the context of working with local government for economic development, the interests and concerns of the private appear to dominate the development decision-making. This Essay explores eminent domain decisions and community benefits agreements for standards for measuring the efficacy of these partnerships. It suggests ways in which we can begin to think about public accountability and public benefits to be derived from these partnerships.

What Should We Celebrate On Constitution Day?, Alan E. Garfield

Georgia Law Review

Congress recently created a new national observance, Constitution Day, to be marked each year on September 17. This observance presents a valuable opportunity for the vastly diverse American populace to celebrate its shared values. But what, exactly, should Americans celebrate about the Constitution? The Constitution's text, after all, is hardly perfect, and judicial interpretations of the Constitution are similarly problematic. This Article sets out to identify the Constitution's core meaning for Americans. If first draws lessons from two contemporary Establishment Clause disputes (the teaching of intelligent design and the displaying of Ten Commandments monuments). These examples illustrate why the Constitution,and …