Public Law and Legal Theory Commons^™

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."

Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …

Thirteen Ways Of Looking At The Law, Bert I. Huang

Faculty Scholarship

I was of three minds
Like a tree
In which there are three blackbirds.

The emergence of external disciplines within legal scholarship seems to have fractured its intellectual focus. Technical and specialized academic writing, moreover, appears to be drifting ever farther from the theaters of legal action. Judge Richard Posner's latest book of essays, Frontiers of Legal Theory, challenges such perceptions: Even as it celebrates the breadth of interdisciplinary legal scholarship, it seeks coherence among myriad methodologies. Even as it delights in the abstract constructs of social science, it emphasizes their practical impact. And as one might expect of Judge …

Deterrence: The Legitimate Function Of The Public Tort, Thomas C. Galligan, Jr.

Washington and Lee Law Review

No abstract provided.

Cost-Benefit Default Principles, Cass R. Sunstein

Michigan Law Review

Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …

Where Is My Body? Stanley Fish's Long Goodbye To Law, Richard Delgado

Michigan Law Review

Stanley Fish, author of Doing What Comes Naturally, Is There a Text in This Class?, There's No Such Thing as Free Speech, and It's a Good Thing, Too, and other paradigm-shifting books, and who recently left law teaching for a position in university administration, has written one last volume giving his colleagues in the profession he left behind something to think about. In his previous work, Fish, who taught English and law at Duke University, addressed central legal issues such as meaning, communication, and textual interpretation, challenging such received wisdoms as that every text has a single, determinate meaning, or …

Pinocchio In Littleton, William A. Kell

University of Michigan Journal of Law Reform

In this Article, Professor Kell proposes a substantial change in policy direction in the wake of school shootings and other tragedies involving young people's abilities to make mature decisions. First, the Article questions the current state of the law which exclusively deems young people to be mature based on "birthdays and bad acts, " rather than on any concept of demonstrated or earned levels of responsibility. Next, an alternative legal framework is envisioned recognizing young people as increasingly competent citizens who must develop psychosocial maturity, including learning how to judge and utilize advice from others such as parents and peers, …

Department Of Managed Health Care, Amy Kay Boatright, Kelly Ann Debie, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Understanding The "Understanding": Federalism Constraints On Human Rights Implementation, Brad R. Roth

Law Faculty Research Publications

No abstract provided.

Board Of Registered Nursing, Kasey E. Jones, Charlotte Wilder, Rusty Nichols, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Board Of Optometry, Tatiana Rodriguez, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Board Of Podiatric Medicine, Monisha Ann Coelho, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Board Of Behavioral Sciences, Stacy Baker, Tasha Soroosh, Collette C. Galvez

California Regulatory Law Reporter

No abstract provided.

Board Of Psychology, Jessica A. Neyman, Mary J. Rocco, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Respiratory Care Board, Paul T. Greco, Jessica A. Neyman, Collette C. Galvez

California Regulatory Law Reporter

No abstract provided.

United Nations Convention Documents In Light Of Feminist Theory, R. Christopher Preston, Ronald Z. Ahrens

Michigan Journal of Gender & Law

This article proposes that language identifying human rights of women in U.N. Conference documents has its origin in several different feminist theories. An understanding of these theories can help to clarify meaning, resolve inconsistencies, and predict the future direction of language in U.N. documents. Part I examines three prominent feminist theories and their relation to international law. Part II examines the history of women's rights in U.N. documents and examines the influence of feminist theory on the document language. Using the Women and the Economy section of the Fourth World Conference on Women, Platform for Action (Platform for Action), Part …

The Value Vacuum: Self-Enforcing Regimes And The Dilution Of The Normative Feedback Loop, Claire R. Kelly

Michigan Journal of International Law

This article proposes a modified constructivist theory, which links liberalism and constructivism through the normative feedback loop. Part I briefly explains traditional international relations theories such as realism, institutionalism, liberalism and constructivism. A modified constructivist perspective espouses the presence of two constants: (i) assertion of national preferences by constituents for whom the state acts as an agent in international relations, and (ii) social construction of state identities through interaction with other states in the international arena.

Dental Board Of California, Collette C. Galvez, Peter Sansom

California Regulatory Law Reporter

No abstract provided.

Veterinary Medical Board, Michelle J. Hubbard, Mary J. Rocco, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Pentadbiran Fatwa Di Negeri Selangor : Kajian Terhadap Enakmen Pentadbiran Perundangan Islam Selangor 1989, Mazni Abdul Wahab

Student Works (2000-2009)

The administration of fatwa in Selangor that has started well before Merdeka, has undergone phenomenal change. Specific legal provisions have largely underscored various aspects of the administration of fatwa including the appointment and power of Mufti, the establishment of Syariah Consultative Committee and the organisation of the administration of fatwa. This study in general attempts to clarify how fatwa has been administered - refering to the law and regulations that are applicable in the state of Selangor. This includes the process of gazetting the fatwa and to what extent the gazetted fatwa are binding to the Muslim community in the …

Board Of Pharmacy, Jenny K. Li, Charlotte Wilder

California Regulatory Law Reporter

No abstract provided.

Medical Board Of California, Amy Kay Boatright, Kelly Ann Debie, Ashley F. Hall-Hicklin, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

It's Conflict All The Way Down, Michael Fischl

Faculty Articles and Papers

No abstract provided.

Game Theory And Customary International Law: A Response To Professors Goldsmith And Posner, Mark A. Chinen

Michigan Journal of International Law

In a pair of recent articles, Professors Jack Goldsmith and Eric Posner have used game theoretic principles to challenge the positivist account of customary international law. Their writings join other early attempts to apply game theory to the international law sources. The author has two purposes in this Article. The first is to evaluate game theory's potential for yielding greater insight into customary international law and international law more generally. The second is to respond to the conclusions about customary international law drawn by Professors Goldsmith and Posner.

Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan

Articles

The topic of this Essay is not one Terry Sandalow has worked on, but he got me started on it by organizing, with Eric Stein, the Bellagio Conference on comparative constitutional economic integration in the United States and the European Community. For that, and for thirty-three years during which he has been an unfailingly stimulating and supportive colleague, Dean, and friend, I am deeply grateful.

The Dynamic Analytics Of Property Law, Michael A. Heller

Articles

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Further Thoughts On Customary International Law, Jack L. Goldsmith, Eric A. Posner

Michigan Journal of International Law

In two earlier articles, the tools of game theory were used to sketch a positive theoretical account of customary international law ("CIL"). This theory rejected as question-begging the usual explanations of CIL based on legality, morality, opinio juris, and related concepts. It was argued instead that CIL emerges from nations' pursuit of self-interested policies on the international stage. This approach helps explain many overlooked features of CIL, including how CIL originates and changes, why the content of CIL tracks the interest of powerful nations, and why nations change their views of CIL when their interests change. Finally, the practices …

Afterword, Mark A. Chinen

Michigan Journal of International Law

The author prefaces the afterword in the following manner: “Professors Goldsmith and Posner have given an insightful reply to my Article. It has been a pleasure to engage in a discussion of these issues with respected colleagues via this exchange of writings, and I am grateful to the Journal for providing the opportunity to do so. Most of the positions I have taken are already adequately discussed in the body of the Article, and this afterword is not intended to summarize all of the arguments made there. However, I wanted to address some of the points Professors Goldsmith and Posner …

The Government As Fiduciary: A Practical Demonstration From The Reign Of Trajan, Robert G. Natelson

University of Richmond Law Review

The Roman Emperor Trajan is justly celebrated as an author of several modern civil rights, such as the right to confront one's accusers. But he is most aptly remembered as the ruler who proved that fiduciary government was possible. Following the example of Trajan's reign could improve greatly the standards of American public law.

Criminal Theory In The Twentieth Century, George P. Fletcher

Faculty Scholarship

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability – normative and descriptive – are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is …

Integrating Water Management And Land Use Planning: Uncovering The Missing Link In The Protection Of Florida's Water Resources?, Mary Jane Angelo

University of Florida Journal of Law & Public Policy

No abstract provided.