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Full-Text Articles in Public Law and Legal Theory

Normative Surrender, Jerome B. Elkind Jan 1988

Normative Surrender, Jerome B. Elkind

Michigan Journal of International Law

It is submitted, at the risk of being accused of idealism, that those who most conspicuously don the mantle of realism are also guilty of normative sloppiness, a form of sloppiness which deserves the name "normative surrender" because it concedes large areas of the law to the will and whim of States. This article will examine the phenomenon of normative surrender and provide some examples of it.

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Jurisprudence And Gender, Robin West Jan 1988

Jurisprudence And Gender, Robin West

Georgetown Law Faculty Publications and Other Works

What is a human being? Legal theorists must, perforce, answer this question: jurisprudence, after all, is about human beings. The task has not proven to be divisive. In fact, virtually all modern American legal theorists, like most modern moral and political philosophers, either explicitly or implicitly embrace what I will call the "separation thesis" about what it means to be a human being: a "human being," whatever else he is, is physically separate from all other human beings. I am one human being and you are another, and that distinction between you and me is central to the meaning of …

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Book Review. Constitutional Federalism In A Nutshell, 2nd Ed. By David E. Engdahl, Daniel O. Conkle Jan 1988

Book Review. Constitutional Federalism In A Nutshell, 2nd Ed. By David E. Engdahl, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

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Communities, Texts, And Law: Reflections On The Law And Literature Movement, Robin West Jan 1988

Communities, Texts, And Law: Reflections On The Law And Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary-legalist's world view. Furthermore, with the exception of …

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The Authoritarian Impulse In Constitutional Law, Robin West Jan 1988

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

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Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski Jan 1988

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

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An Interested Response To A "Wholly Disinterested Assessment": Lebel On Summers On Lebel On Summers On ….Er…Um…Oh, Yeah…Fuller, Paul A. Lebel Aug 1987

An Interested Response To A "Wholly Disinterested Assessment": Lebel On Summers On Lebel On Summers On ….Er…Um…Oh, Yeah…Fuller, Paul A. Lebel

Michigan Law Review

In 1985, I published in the Michigan Law Review a review of a recent book by Professor Robert S. Summers on the legal philosophy of Lon Fuller. Professor Summers has published in the Cornell Law Review an ironically titled criticism of my review and of another review. In a number of respects, Professor Summers' Assessment has served to increase my understanding of his book, and I trust that other readers will be similarly benefited. Although Professor Summers' response to my review of his book takes issue with what I said on a number of points, I strongly suspect that few …

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Public Interest Organizations, J. Jacobson May 1987

Public Interest Organizations, J. Jacobson

California Regulatory Law Reporter

No abstract provided.

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Punishment: Desert And Crime Control, Ernest Van Den Haag May 1987

Punishment: Desert And Crime Control, Ernest Van Den Haag

Michigan Law Review

A Review of Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals by Andrew von Hirsch

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The Corporate Practice Of Medicine Doctrine: An Anachronism In The Modern Health Care Industry, Jeffrey F. Chase-Lubitz Mar 1987

The Corporate Practice Of Medicine Doctrine: An Anachronism In The Modern Health Care Industry, Jeffrey F. Chase-Lubitz

Vanderbilt Law Review

Corporations, in the form of small, doctor-owned, proprietary hospitals and community or charity nonprofit hospitals, have pervaded the provision of health care services for many years. Recently, however, private, for-profit corporations increasingly have entered the health care field. One industry expert predicts that by the mid-1990s, ten national firms will provide fifty percent of the nation's medical care. Nationwide hospital chains, nonexistent twenty years ago, now own or manage twelve percent of the nation's hospitals. The proliferation of health maintenance organizations, freestanding emergency centers,' and other proprietary health care delivery systems exemplify the increased commercialization of medicine. Indeed, many young …

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Public Interest Organizations, J. Jacobson Jan 1987

Public Interest Organizations, J. Jacobson

California Regulatory Law Reporter

No abstract provided.

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Some Realism About Critical Legal Studies, Michael Fischl Jan 1987

Some Realism About Critical Legal Studies, Michael Fischl

Faculty Articles and Papers

No abstract provided.

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Twisting The Tourniquet Around The Pulse Of Conventional Legal Wisdom: Jurisprudence And Law Reform In The Work Of Robert A Samek, Richard F. Devlin Frsc Jan 1987

Twisting The Tourniquet Around The Pulse Of Conventional Legal Wisdom: Jurisprudence And Law Reform In The Work Of Robert A Samek, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Despite some lingering reservations, after a reading and re-reading, analysis and counter-analysis, critique, reflection and synthesis of over thirty articles and two books, I now feel comfortable with Samek's work and confident enough to present this reconstruction of his theory in order that his thoughts will be more accessible to those who might be interested

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Land Use Planning In Palm Beach County: The Planning Process And Legal Issues, Thomas J. Baird Jan 1987

Land Use Planning In Palm Beach County: The Planning Process And Legal Issues, Thomas J. Baird

University of Florida Journal of Law & Public Policy

This article examines Article VII of the Palm Beach County Charter (Charter) and its provisions including the operation of the Palm Beach County Planning Council (Planning Council). Second, the article discusses important legal issues related to the Planning Council’s operations and stated purposes. Article VII contains key elements that define the Planning Council’s role and authority in countywide planning issues. The article reviews pertinent case law and statutes and suggests how the resolution of these issues could occur. The article concludes that the Planning Council should broadly exercise its power to increase the effectiveness of the planning process in Palm …

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Inclusionary Zoning And Linkage: Land Use Planning Techniques In An Age Of Scarce Public Resources, Paul S. Quinn Jr. Jan 1987

Inclusionary Zoning And Linkage: Land Use Planning Techniques In An Age Of Scarce Public Resources, Paul S. Quinn Jr.

University of Florida Journal of Law & Public Policy

This paper discusses the historical development of inclusionary zoning and linkage and the reasons why both techniques are important issues for land use planning. Next, the paper examines current linkage programs in Boston and Miami, which have served as model programs throughout the nation. The paper also addresses the constitutional challenges to linkage and the merits of each argument. Finally, guidelines for a successful linkage program are explained with an analysis of ways to survive constitutional challenges. The paper concludes the linkage programs are necessary if current economic trends continue and affordable housing becomes even more scarce in the future.

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Dedication, Chesterfield Smith Jan 1987

Dedication, Chesterfield Smith

University of Florida Journal of Law & Public Policy

No abstract provided.

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Judicial Decision-Making In Florida's Appellate Courts, Stephen H. Grimes Jan 1987

Judicial Decision-Making In Florida's Appellate Courts, Stephen H. Grimes

University of Florida Journal of Law & Public Policy

No abstract provided.

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Introduction, Julian C. Juergensmeyer Jan 1987

Introduction, Julian C. Juergensmeyer

University of Florida Journal of Law & Public Policy

Over the past decade, the State of Florida—its environment sensitive, its population exploding, and its economy expanding—has pioneered innovative land planning and development regulation law. Our Local Government Comprehensive Planning and Land Development Regulation Act, State Comprehensive Plan Act, Environmental Land and Water Management Act, and Regional Planning Council Act are considered models in many American states and even in foreign countries. The Growth Management Act of 1985 is unique in providing for a statewide planning framework that strengthens our major land use regulation and environmental protections laws and requires consistency between all state, regional, and local planning activities.

Legislation, …

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Law And Economics: A Policy Analysis Of A Proposed Alachua County Greenbelt Plan, Jorge Guira Jan 1987

Law And Economics: A Policy Analysis Of A Proposed Alachua County Greenbelt Plan, Jorge Guira

University of Florida Journal of Law & Public Policy

This essay outlines the various attributes of law and economics jurisprudence and applies these tenets to a proposed Alachua County greenbelt plan. The essay’s first section discusses the assumptions and main themes of the law and economics school of thought. This section develops the theorical underpinnings that economists use to analyze legal issues. The second section analyzes the policy implications of the law and economics approach and its application to an Alachua County Greenbelt Proposal. The paper concludes with a brief summary of the essay’s primary findings.

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Family Law: The Ancient Doctrine Of Necessaries And A Wife's Avoidance Of Her Husband's Debts, Gary W. Powell Jan 1987

Family Law: The Ancient Doctrine Of Necessaries And A Wife's Avoidance Of Her Husband's Debts, Gary W. Powell

University of Florida Journal of Law & Public Policy

No abstract provided.

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Editor's Dedication, Scott D. Makar Jan 1987

Editor's Dedication, Scott D. Makar

University of Florida Journal of Law & Public Policy

No abstract provided.

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The Economics Of Linkage Fees, Forrest Huffman, Marc T. Smith Jan 1987

The Economics Of Linkage Fees, Forrest Huffman, Marc T. Smith

University of Florida Journal of Law & Public Policy

This commentary takes a brief look at some of the major issues confronting the use of linkage fees. The first section addresses the legal issue of whether there is a “rational nexus” between commercial development and a reduction in the supply of affordable housing. The next section discusses two related topics: (1) what market factors made linkage programs in some area of the country successful; and (2) whether linkage programs are viable in depressed office markets. This section also outlines the market effects of linkage fees. Developers may respond to linkage fees in a number of ways that adversely affect …

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A Model Wetlands Protection Ordinance: Legal Considerations, Mary Jane Angelo Jan 1987

A Model Wetlands Protection Ordinance: Legal Considerations, Mary Jane Angelo

University of Florida Journal of Law & Public Policy

Many counties in Florida are currently in the process of developing new wetlands protection ordinances, or revising old ones. While public policy supports strict regulation of activities in wetlands, many counties are reluctant to adopt restrictive ordinances because of the potential for large damage awards if the regulations are later found to be temporary takings. Recent Supreme Court case law has upheld the payment of compensation as an appropriate remedy for overly restrictive land use regulations compounding the fears of local governments. This paper summarizes the legal implications of a Model Wetlands Protection Ordinance developed by the author. In particular, …

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Impact Fees, Housing Costs, And Housing Affordability: Who Bears The Impact Of Impact Fees?, Charles J. Delaney Jan 1987

Impact Fees, Housing Costs, And Housing Affordability: Who Bears The Impact Of Impact Fees?, Charles J. Delaney

University of Florida Journal of Law & Public Policy

This paper addresses the theoretical relationship between impact fees and housing affordability for moderate and middle income groups. The paper begins with an overview of the results of various impact fee studies. Included in this section are discussions of the short and long term effects of impact fees and who bears the incidence of impact fees. The paper then presents a model that demonstrates the effects of impact fees on housing costs using data from two Florida cities. The paper concludes that market supply and demand for housing determine which parties—builders, buyers or landowners—bear the burden of impact fee. This …

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The Supreme Court's 1987 "Takings" Triad: An Old Hat In A New Box Or A Revolution In Takings Law?, Michael Simon Jan 1987

The Supreme Court's 1987 "Takings" Triad: An Old Hat In A New Box Or A Revolution In Takings Law?, Michael Simon

University of Florida Journal of Law & Public Policy

This paper presents an overview of the Supreme Court’s 1987 takings cases and their impact on land use regulation. The paper begins with an overview of the development of takings jurisprudence focusing on the two contrasting approaches the Supreme Court developed early in this century. Next, the paper discusses the Court’s recent takings cases through the 1986-87 term. The paper then presents an overview of the Court’s 1987 decisions. Finally, this section discusses the impact these cases will have on land use regulation.

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Municipal Immunity From Antitrust Liability: Recognition Of A Broad Welfare Exemption, Matt Farmer, Kathy Gaertner Jan 1987

Municipal Immunity From Antitrust Liability: Recognition Of A Broad Welfare Exemption, Matt Farmer, Kathy Gaertner

University of Florida Journal of Law & Public Policy

No abstract provided.

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Public Welfare: Florida Counties Have No Duty To Provide Indigents With Post-Emergency Medical Care, Kendall Almerico Jan 1987

Public Welfare: Florida Counties Have No Duty To Provide Indigents With Post-Emergency Medical Care, Kendall Almerico

University of Florida Journal of Law & Public Policy

No abstract provided.

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Rule 19 And The Public Rights Exception To Party Joinder, Carl W. Tobias Jan 1987

Rule 19 And The Public Rights Exception To Party Joinder, Carl W. Tobias

Law Faculty Publications

The increasing number of "public interest" lawsuits suggests that federal courts increasingly will confront difficult party joinder questions posed by such litigation. These problems arise because entities not involved in the litigation may have interests that may be adversely affected by the litigation. The joinder issue presented by such cases is whether rule 19 of the Federal Rules of Civil Procedure requires that the suit be dismissed or whether the litigation can continue without joinder of the absent entities. Numerous courts have dealt with the question by creating a 'public rights exception," which permits the litigation to continue even without …

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Rent Seeking And The Compensation Principle, Thomas W. Merrill Jan 1987

Rent Seeking And The Compensation Principle, Thomas W. Merrill

Faculty Scholarship

The reaction to Richard Epstein's Takings has been almost universally negative. Joseph Sax finds Epstein the "prisoner of an intellectual style so confining and of a philosophy so rigid that he has disabled himself from seeing problems as beyond the grasp of mere formalism." Thomas Grey concludes that "Takings belongs with the output of the constitutional lunatic fringe" and is "a travesty of constitutional scholarship." Thomas Ross, writing in this Law Review, says that, at least from an academic perspective, Takings is "a patent and howling failure." Epstein has provoked even the student editors of the Harvard Law Review …

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The Right Of Publicity: Commercial Exploitation Of The Associative Value Of Personality, Sheldon W. Halpern Oct 1986

The Right Of Publicity: Commercial Exploitation Of The Associative Value Of Personality, Sheldon W. Halpern

Vanderbilt Law Review

For more than thirty years, dispute and confusion have marked the emergence and development of the so-called "right of publicity,"' a right that is concerned with the use of attributes of a generally identifiable person to enhance the commercial value of an enterprise. A dense, complex array of cases, accompanied by and analyzed in an even denser array of commentary, has been the vehicle for adumbrating the emergent right. Battle lines are drawn over whether the creature emerging from the fermenting ooze of modern mass communications is a species of "property" or a purely personal "privacy" interest."Everywhere one finds the …

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