Open Access. Powered by Scholars. Published by Universities.®
Social and Behavioral Sciences Commons™
Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Selected Works (6)
- BLR (5)
- University of Pennsylvania Carey Law School (5)
- Georgetown University Law Center (2)
- SelectedWorks (2)
-
- University of Richmond (2)
- Chapman University (1)
- Duke Law (1)
- Seattle University School of Law (1)
- University at Buffalo School of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of New Hampshire (1)
- University of Oklahoma College of Law (1)
- University of Pittsburgh School of Law (1)
- Keyword
-
- Constitutional Law (7)
- Politics (6)
- Economics (5)
- Law and Economics (5)
- Public Law and Legal Theory (4)
-
- Human Rights Law (3)
- Legislation (3)
- Antitrust (2)
- Campaign finance (2)
- Comparative and Foreign Law (2)
- Constitutional law (2)
- Corporations (2)
- Criminal Law and Procedure (2)
- Democracy (2)
- Election law (2)
- Environmental Law (2)
- General Law (2)
- International Law (2)
- Judicial selection (2)
- Jurisdiction (2)
- Jurisprudence (2)
- Juveniles (2)
- Law and Society (2)
- Legal History (2)
- Natural Resources Law (2)
- Property-Personal and Real (2)
- Separation of powers (2)
- Social Welfare (2)
- Water Law (2)
- "state action" (1)
- Publication
-
- All Faculty Scholarship (5)
- ExpressO (5)
- Georgetown Law Faculty Publications and Other Works (2)
- University of Richmond Law Review (2)
- Articles (1)
-
- Business Faculty Articles and Research (1)
- Chiehwen Ed Hsu (1)
- Donald J. Kochan (1)
- Faculty Scholarship (1)
- Harry F. Tepker Jr. (1)
- Journal Articles (1)
- Lara Karaian (1)
- Paul R Rickert (1)
- Paulo Ferreira da Cunha (1)
- Richard Adelstein (1)
- Richard Kay (1)
- Seattle Journal for Social Justice (1)
- The University of New Hampshire Law Review (1)
- University of Maryland Law Journal of Race, Religion, Gender and Class (1)
- Zachary Elkins (1)
- Publication Type
Articles 1 - 30 of 30
Full-Text Articles in Social and Behavioral Sciences
Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai
Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai
Seattle Journal for Social Justice
No abstract provided.
Assessing The Readiness And Training Needs Of Non-Urban Physicians In Public Health Emergency And Response, Chiehwen Ed Hsu
Assessing The Readiness And Training Needs Of Non-Urban Physicians In Public Health Emergency And Response, Chiehwen Ed Hsu
Chiehwen Ed Hsu
No abstract provided.
Federalism And Antitrust Reform, Herbert J. Hovenkamp
Federalism And Antitrust Reform, Herbert J. Hovenkamp
All Faculty Scholarship
Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen
The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen
ExpressO
The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …
Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya
Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya
ExpressO
In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …
States’ Rights And The Scope Of The Treaty Power: Could The Patriot Act Be Constitutional As A Treaty?, Simcha Herzog
States’ Rights And The Scope Of The Treaty Power: Could The Patriot Act Be Constitutional As A Treaty?, Simcha Herzog
The University of New Hampshire Law Review
[Excerpt] “Consider the following hypothetical scenario: after an appeal by the American Civil Liberties Union, the Supreme Court determines that the Patriot Act is unconstitutional. This decision so infuriates President Bush that he seeks out the advice of his legal counsel in a frantic attempt to bypass the Court’s ruling. After some research, President Bush’s legal advisers give him two options: he can either attempt to pass an amendment to the constitution or, with the “advice and consent of the Senate,” he can sign the Patriot Act as a treaty with a foreign nation. Either of these measures will evade …
Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis
Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis
ExpressO
This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …
Judicial Confirmation Wars: Ideology And The Battle For The Federal Courts, Sheldon Goldman
Judicial Confirmation Wars: Ideology And The Battle For The Federal Courts, Sheldon Goldman
University of Richmond Law Review
No abstract provided.
Judicial Selection As . . . Talk Radio, Michael J. Gerhardt
Judicial Selection As . . . Talk Radio, Michael J. Gerhardt
University of Richmond Law Review
No abstract provided.
What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu
What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu
ExpressO
Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …
Democracy's Paradox: Popular Rule As A Constitutional Limit On Foreign Policy Promoting Popular Rule, Harry F. Tepker Jr.
Democracy's Paradox: Popular Rule As A Constitutional Limit On Foreign Policy Promoting Popular Rule, Harry F. Tepker Jr.
Harry F. Tepker Jr.
No abstract provided.
Troubling The Definition Of Pornography: Little Sisters, A New Defining Moment In Feminists' Engagement With The Law?, Lara Karaian
Troubling The Definition Of Pornography: Little Sisters, A New Defining Moment In Feminists' Engagement With The Law?, Lara Karaian
Lara Karaian
This article explores feminism’s relationship to the legal regulation of pornography. Of particular interest to the author is how the defining moment of the Butler decision has been opened up to contestation and complication by Little Sisters Book and Art Emporium et. al. v. Minister of Justice et al., a recent Supreme Court of Canada decision regarding Canada Customs violations of the free expression and equality rights of a Vancouver-based gay and lesbian bookstore. The focus of the article is on the role that the Women’s Legal Education and Action Fund (LEAF) played in both Butler and Little Sisters. The …
Big Government And Its Wars On Crime: Crime Control As A Method Of Government Expansionism, Paul R. Rickert
Big Government And Its Wars On Crime: Crime Control As A Method Of Government Expansionism, Paul R. Rickert
Paul R Rickert
The federal government has expanded to meet perceived social needs and as issues come to the forefront that Washington elites believe they can fix. Consequently, they expand the power and role of the government. One way this is done is through progressive criminalization of once held freedoms. Consider the first drug laws, consider the war on poverty, consider the tax code, the new war on drugs, and hate-crimes legislation. Although tax law is not criminal law per-se, in the end, choosing not to pay taxes results in prosecution. Laws and regulations ultimately must have “teeth” for it to be effective. …
Preferring White Lives: The Racial Administration Of The Death Penalty In Maryland, Michael Millemann, Gary W. Christopher
Preferring White Lives: The Racial Administration Of The Death Penalty In Maryland, Michael Millemann, Gary W. Christopher
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Faculty Scholarship
No abstract provided.
Solving The Bargaining Democracy Problem Using A Constitutional Hierarchy Of Law, Clas Wihlborg
Solving The Bargaining Democracy Problem Using A Constitutional Hierarchy Of Law, Clas Wihlborg
Business Faculty Articles and Research
In the “bargaining democracy” groups form coalitions that are able to grant benefits to themselves through legislation. These benefits may lack popular support. A constitutional hierarchy of conflicting laws is proposed to resolve this democratic problem. In the hierarchy more “rule-oriented” legislation dominate. The hierarchy would create a momentum of the political process towards more rule-oriented legislation and policy debate. The difficulty of defining a rule operationally is overcome by limiting the task of a constitutional court to simply rank conflicting policy actions in terms of criteria for rules.
Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton
Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton
Articles
Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …
Democracy Without A Net? Separation Of Powers And The Idea Of Self-Sustaining Constitutional Constraints On Undemocratic Behavior, James A. Gardner
Democracy Without A Net? Separation Of Powers And The Idea Of Self-Sustaining Constitutional Constraints On Undemocratic Behavior, James A. Gardner
Journal Articles
The United States Constitution is designed to achieve good government by relying on two distinct systems: a primary system that achieves good governance through democratic electoral accountability; and a set of self-sustaining structural backup systems designed for situations in which the democratic system fails, and which operate by limiting the ability of bad rulers to do serious harm to the public good. A key premise of this kind of dual structural arrangement is that effective backup systems must operate independently of primary democratic systems; because they are needed precisely when democratic mechanisms have failed, they cannot depend for their success …
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
All Faculty Scholarship
Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …
Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer
Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer
All Faculty Scholarship
No abstract provided.
Architectural Censorship And The Fcc, Christopher S. Yoo
Architectural Censorship And The Fcc, Christopher S. Yoo
All Faculty Scholarship
Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …
Managing Gerrymandering, Mitchell N. Berman
Managing Gerrymandering, Mitchell N. Berman
All Faculty Scholarship
Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …
Judicial Selection: Ideology Versus Character, Lawrence B. Solum
Judicial Selection: Ideology Versus Character, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes--mostly off the …
Terrorist Speech And The Future Of Free Expression, Laura K. Donohue
Terrorist Speech And The Future Of Free Expression, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …
Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay
Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay
Richard Kay
Book reivew of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Russell (Toronto, University of Toronto Press, 2004).
Knowledge And Power In The Mechanical Firm: Planning For Profit In Austrian Perspective, Richard Adelstein
Knowledge And Power In The Mechanical Firm: Planning For Profit In Austrian Perspective, Richard Adelstein
Richard Adelstein
A theory of central planning employing Austrian themes and applied to private firms and Taylorism.
Desafios Da Constituição Europeia À Teoria Constitucional, Paulo Ferreira Da Cunha
Desafios Da Constituição Europeia À Teoria Constitucional, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
The project of the “Treaty that establishes a Constitution for the Europe”, beyond its political consequences, puts some challenges to the classical constitutional theory. At first sight, it seems completely heterodox towards canon constitutional tendencies, and first of all in what concerns the constituent power classical theories. However, a more rigorous analysis of the history of the modern constitutionalism and its founding texts, mainly French, can lead us to detect very revealing bridges between the liberal modern constitutionalism of the XVIIIth century and the present constitution making of a codified European Constitution. The “treaty” formula that was adopted also represents …
No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan
Donald J. Kochan
Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …
On Waves, Clusters, And Diffusion: A Conceptual Framework, Zachary Elkins, Beth Simmons
On Waves, Clusters, And Diffusion: A Conceptual Framework, Zachary Elkins, Beth Simmons
Zachary Elkins
No abstract provided.