Public Law and Legal Theory Commons^™

Terrorists And Tennis Courts: How Legal Interpretations Of The Freedom Of Information Act And New Laws Enacted To Prevent Terrorist Attacks Will Share The Public's Ability To Access Critical Infrastructure Information, Cara Muroff

University of Florida Journal of Law & Public Policy

No abstract provided.

Separation Of Powers: The Judiciary's Limited Role In Reviewing The President's Detention Of Enemy Combatants, Carolyn M. Zegeer

University of Florida Journal of Law & Public Policy

No abstract provided.

Before Brown, After Brown: What Has Changed For African-American Children?, Vivian Gunn Morris, Curtis L. Morris

University of Florida Journal of Law & Public Policy

No abstract provided.

Brown At 50: School Desegregation From Reconstruction To Resegregation, Leland Ware

University of Florida Journal of Law & Public Policy

No abstract provided.

The Picture Of Equality, Alfred Dennis Mathewson

University of Florida Journal of Law & Public Policy

No abstract provided.

Fighting For Children's Rights: Lessons From The Civil Rights Movement, Lewis Pitts

University of Florida Journal of Law & Public Policy

No abstract provided.

Inconsistent Levels Of Generality In The Characterization Of Unenumerated Fundamental Rights, John F. Basiak Jr.

University of Florida Journal of Law & Public Policy

No abstract provided.

A Struggle Of Biblical Proportions: The Campaign To Enact The Workplace Religious Freedom Act Of 2003, Robert A. Caplen

University of Florida Journal of Law & Public Policy

No abstract provided.

Constitutional Law: Funding The Free Exercise Clause, David M. Applegate

University of Florida Journal of Law & Public Policy

No abstract provided.

Bridging The Gaps: Cognitive Constraints On Corporate Control & Ethics Education, Michael B. Metzger

University of Florida Journal of Law & Public Policy

No abstract provided.

A Toothless Tiger In The Constitutional Jungle: The "Knock And Announce Rule" And The Sacred Castle Door, E. Martin Estrada

University of Florida Journal of Law & Public Policy

No abstract provided.

When Is An Invasion Of Privacy Unwarranted Under The Foia? An Analysis Of The Supreme Court's Sufficient Reason And Presumption Of Legitimacy Standards, Martin E. Halstuk

University of Florida Journal of Law & Public Policy

No abstract provided.

Legislative Term Limits And Professionalism: Examining The Obvious Link, Michelle S. Friedman

University of Florida Journal of Law & Public Policy

No abstract provided.

Entrapment By Numbers, Dru Stevenson

University of Florida Journal of Law & Public Policy

No abstract provided.

The Undocumented Worker: Fuller, Holmes, And The Bush Proposal Within Immigration And Labor Law Jurisprudence, Howard Goldfarb

University of Florida Journal of Law & Public Policy

No abstract provided.

Legal Durability, Omri Ben-Shahar

Articles

This paper develops a framework to study the effects of the durability of legal allocation decisions, such as trial outcomes, regulatory enactments and property entitlements. For a party favored by the legal allocation, a more durable decision is also more costly to secure, ex-ante. Thus, it is not the greater durability of the allocation that determines whether the “winner” is better-off, but other factors that are affected by the durability attribute, such as the cost of securing a favorable outcome and the ability of contesting parties to affect this cost. The paper develops conditions under which greater durability is irrelevant, …

Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing …

The Afterlife Of The Meretricious Relationship Doctrine: Applying The Doctrine Post Mortem, John E. Wallace

Seattle University Law Review

The meretricious relationship doctrine has received increased attention in recent years largely due to its application to same-sex couples' and the national debate on same-sex marriage. However, the importance of the doctrine, applicable also to heterosexual couples, extends beyond this recent focus. The number of unmarried, committed persons cohabitating has been increasing rapidly. Over eleven million people reported being unmarried but living with a partner in 2000, an increase of seventy-two percent since 1990. As the number of unmarried persons cohabitating increases, so will the importance of the doctrine. The meretricious relationship doctrine is a judicially-created equitable doctrine that allows …

The Washington 2004 Gubernatorial Election Crisis: The Necessity Of Restoring Public Confidence In The Electoral Process, Joaquin G. Avila

Seattle University Law Review

This Article details the plethora of problems associated with Washington State's 2004 gubernatorial election and explores the proposed electoral reforms in light of prior threats to the electoral process. The Article postulates that electoral reforms in the administration of elections also present an important opportunity to provide minority communities with greater access to the political process. Part II of this Article begins with a history ofvoting discrimination in the United States. This history provides a context to the 2004 gubernatorial election in Washington. In addition, this history provides an important background context for assessing whether reforms in the administration of …

Statute And Public Policy In Private International Law: Gambling Contracts And Foreign Judgments, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

This note argues that because there is a legal distinction between the public policy defence to the enforcement of foreign judgments under the common law and the corresponding defence in the Reciprocal Enforcement of Commonwealth Judgments Act, the prohibition against the enforcement of foreign wagering transactions under Singapore law is no longer founded on public policy.

The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji

The Ohio State University Moritz College of Law Working Paper Series

The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous “hanging chad” punch card. Yet the introduction of paperless technology, especially electronic “touchscreen” machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney

The Ohio State University Moritz College of Law Working Paper Series

This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the …

Regulatory Taxings, Eduardo M. Peñalver

Cornell Law Faculty Publications

The tension between the Supreme Court's expansive reading of the Takings Clause and the state's virtually limitless power to tax has been repeatedly noted, but has received little systematic exploration. Although some scholars, most notably Richard Epstein, have used the tension between takings law and taxes to argue against the legitimacy of taxation as it is presently practiced, such an approach has failed to gain a significant following. Instead, the broad legal consensus is that legislatures effectively have unlimited authority to impose tax burdens. Nevertheless, this Article demonstrates that every attempt to formulate a "Reconciling Theory," a theory that would …

Hope And Misgiving About Lawyers, Consensus-Building, And Social Problem-Solving, Jennifer Gerarda Brown

Nevada Law Journal

No abstract provided.

The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith

University of San Diego Public Law and Legal Theory Research Paper Series

This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Rules Of The Game: The "Play In The Joints" Between The Religion Clauses, Sharon Keller

ExpressO

Locke v. Davey is an exemplar of the new generation of Establishment clause cases that, particularly in Zelman v. Simmons-Harris, have written into law a safe harbor, private choice, for governmental benefits that find their way into the coffers of religious institutions in amounts that are neither incidental nor trivial. In Locke the options presented in the private choice arguably infringed upon Free Exercise rights-- the dilemma that gives rise to the title of this article. Over the vigorous dissent of Justice Scalia, the Locke Court’s analysis of the permissibility of the conditioned benefit was based upon the argument that …

Two Mistakes Behavioralists Make: A Reply To Professor Feigenson Et Al. And Professor Slovic, Thom Lambert

Faculty Publications

First, the growing catalog of cognitive quirks may lead behavioralists to hastily adopt “non-rational” explanations for otherwise rational behavior. Second, because their evidence seems to undermine the rationality assumption of Chicago school law and economics, behavioralists may improperly assume that their work also undermines that school's default policy prescription--i.e., laissez faire. Consequently, they may advocate inappropriately paternalistic government policies.

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …