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Articles 1 - 30 of 84
Full-Text Articles in Legal Theory
Beyond Judicial Populism, Anil Kalhan
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Anil Kalhan
With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …
Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter Aschenbrenner
Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter Aschenbrenner
Peter J. Aschenbrenner
Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices underlying various clauses. However, no delegate had access to the official journal of the constitutional convention.
Coase Minus The Coase Theorem--Some Problems With Chicago Transaction Cost Analysis, Pierre Schlag
Coase Minus The Coase Theorem--Some Problems With Chicago Transaction Cost Analysis, Pierre Schlag
Pierre Schlag
In law as well as economics, the most well-known aspect of Coase’s “The Problem of Social Cost,” is the Coase Theorem. Over the decades, that particular notion has morphed into a crucial component of Chicago law and economics—namely, transaction cost analysis. In this Article, I deliberately bracket the Coase Theorem to show that “The Problem of Social Cost” contains far more interesting and unsettling lessons—both for law as well as for economics. Indeed, while Coase’s arguments clearly target the Pigouvian attempts to “improve on the market” through government correctives, there is, lurking in those arguments, a much more profound critique …
Courting Power, Anil Kalhan
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices behind various clauses. However, no delegate had access to the official journal of the constitutional convention.
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Peter J. Aschenbrenner
Parliament (primary text writer, the House of Commons) produced 24,647 words beginning in 1801; in in a comparable interval, Congress produced 27,123 words. By coincidence, this was the first year that Parliament served as the text-writer for the newly-minted United Kingdom of Great Britain and Ireland. Appraisives in the English language, numbering 3,683 have been tested against the Early Constitution. Appraisives in the Early Constitution, 2 OCL 193. This investigation tests the known class of appraisives in these target vocabularies employed by Congress and Parliament. Mean words between ‘hits’ are returned.
Introduction To Marshall Digital Scholar/Everything You Thought You Knew About Copyright, Jingping Zhang, Monica Brooks, Paris E. Webb, Larry Sheret
Introduction To Marshall Digital Scholar/Everything You Thought You Knew About Copyright, Jingping Zhang, Monica Brooks, Paris E. Webb, Larry Sheret
Larry Sheret
Copyright Primer: demystifying the law and best practices for librarians. Ignorance of the law is no longer acceptable and individuals can now be assessed astronomically high statutory damages per infringement. Join us for a frank and informative discussion regarding current copyright law and application in your library when working with digital publisher content. We don’t pretend to have all the answers but our team will share our MDS workflow for securing permissions for inclusion in the institutional repository for public access
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
David Ingram
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
The Structural Injustice Of Forced Migration And The Failings Of Normative Theory, David Ingram
The Structural Injustice Of Forced Migration And The Failings Of Normative Theory, David Ingram
David Ingram
I propose to criticize two strands of argument - contractarian and utilitarian – that liberals have put forth in defense of economic coercion, based on the notion of justifiable paternalism. To illustrate my argument, I appeal to the example of forced labor migration, driven by the exigencies of market forces. In particular, I argue that the forced migration of a special subset of unemployed workers lacking other means of subsistence (economic refugees) cannot be redeemed paternalistically as freedom or welfare enhancing in the long run. I further argue that contractarian and utilitarian approaches are normatively incapable of appreciating this fact …
Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram
Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram
David Ingram
In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …
Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ In The Federalist Papers: Semantic Values Surveyed, Peter Aschenbrenner
Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ In The Federalist Papers: Semantic Values Surveyed, Peter Aschenbrenner
Peter J. Aschenbrenner
The eighty-five Federal Papers (authors James Madison and Alexander Hamilton; John Jay contributed five) are justifiably famous as elaborations of constitutional structure and text, sans citation to the convention, understandably, since secrecy imposed by Standing Order on May 28th was continued indefinitely (at the pleasure/non-action of Congress) on September 17th. Counts on semantic value/s of ‘constitution’ and ‘constitutional’ are surveyed.
A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter Aschenbrenner
A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter Aschenbrenner
Peter J. Aschenbrenner
Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.
Order Of Delegate Arrival At Philadelphia Tabled Against Support/Opposition To Constitution, Peter J. Aschenbrenner, David Kimball
Order Of Delegate Arrival At Philadelphia Tabled Against Support/Opposition To Constitution, Peter J. Aschenbrenner, David Kimball
Peter J. Aschenbrenner
Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Arrival of the delegates is matched with support/opposition for the Constitution.
Delegate Arrivals At Philadelphia Compared To Voting Records At The Ratification Conventions By State, Peter J. Aschenbrenner, David Kimball
Delegate Arrivals At Philadelphia Compared To Voting Records At The Ratification Conventions By State, Peter J. Aschenbrenner, David Kimball
Peter J. Aschenbrenner
Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Eleven states ratified the Constitution between December 7, 1787 and July 26, 1788. When delegate arrival dates are compared with the order in which their respective state ratification conventions completed their business, a significant number of delegates supporting the constitution are missing in action.
Table Annexed To Article: Delegate Arrivals In Philadelphia Compared To Voting Records, Peter J. Aschenbrenner, David Kimball
Table Annexed To Article: Delegate Arrivals In Philadelphia Compared To Voting Records, Peter J. Aschenbrenner, David Kimball
Peter J. Aschenbrenner
Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Eleven states ratified the Constitution between December 7, 1787 and July 26, 1788. When delegate arrival dates are compared with the order in which their respective state ratification conventions completed their business, a significant number of delegates supporting the constitution are missing in action.
Table Annexed To Article: A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter J. Aschenbrenner
Table Annexed To Article: A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter J. Aschenbrenner
Peter J. Aschenbrenner
Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.
Towards Respecting Indigenous Rights In Development Policy: The Case Of A Community-Based Forest Management Project In Panama, Benjamin Goodman
Towards Respecting Indigenous Rights In Development Policy: The Case Of A Community-Based Forest Management Project In Panama, Benjamin Goodman
Benjamin Goodman
As Latin American countries reach new heights of development, perched on the shoulders of an increasingly globalized economy, their local indigenous communities continue to be the most marginalized and impoverished people in the world. Sustainable development initiatives present themselves as a way to contribute to global economic development, while at the same time, respecting the livelihoods of rural peoples and preserving natural resources for future generations. However, unsustainable exploitation of natural resources continues to threaten the livelihoods and identities of many rural indigenous communities. As the economic, legal and political marginalization of indigenous peoples persists, the inevitable result of these …
Table Annexed To Article: Introducing Constitutional Text Units, Peter Aschenbrenner
Table Annexed To Article: Introducing Constitutional Text Units, Peter Aschenbrenner
Peter J. Aschenbrenner
The traditional citation format for reference to specific passages in the federal constitution does not account for the order in which text was added, changed or deleted; a new citation format is proposed, called ‘Constitutional Text Units’; Madison’s June, 1789 suggestion for maintaining a coherent presentation is explained and defended.
Naming Constitutions And Constitutional Text In The Early American Republic, Peter J. Aschenbrenner
Naming Constitutions And Constitutional Text In The Early American Republic, Peter J. Aschenbrenner
Peter J. Aschenbrenner
From the beginning of the nation (October 7, 1777) to the disaster of Dred Scott (March 6, 1857), the United States has produced thirty-two articles worth of constitutioinal text, in 133 constitutional text units, beginning with the Articles of Confederation (opening date noted above). OCL names all the writings and groups them, for the first time.
Table Annexed To Article: Naming Constitutions/ Constitutional Text In The Early American Republic, Peter J. Aschenbrenner
Table Annexed To Article: Naming Constitutions/ Constitutional Text In The Early American Republic, Peter J. Aschenbrenner
Peter J. Aschenbrenner
From the beginning of the nation to disaster of Dred Scott (March 6, 1857), the United States has produced twenty-one writings which may be grouped as constitutional text units after the Articles of Confederation. OCL names all the writings and groups them, for the first time.
Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz
Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz
Justin Schwartz
Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …
Table Annexed To Article: Our Aesthetic Constitution, Peter J. Aschenbrenner
Table Annexed To Article: Our Aesthetic Constitution, Peter J. Aschenbrenner
Peter J. Aschenbrenner
If natural language is deficient, then descriptions-in-words of constitutions may suffer the same fate. What other choices are there, when an investigator – or more typically, a speaker in ordered discourse – or even more usually a speaker uttering demotic elaboration – sets out to describe constitutional text? Isn’t it obvious that artifacts featuring words lock users into using more words? OCL offers (the first of) several studies.
Our Aesthetic Constitution, Peter J. Aschenbrenner
Our Aesthetic Constitution, Peter J. Aschenbrenner
Peter J. Aschenbrenner
If natural language is deficient, then descriptions-in-words of constitutions may suffer the same fate. What other choices are there, when an investigator – or more typically, a speaker in ordered discourse – or even more usually a speaker uttering demotic elaboration – sets out to describe constitutional text? Isn’t it obvious that artifacts featuring words lock users into using more words? OCL offers (the first of) several studies.
La Objeción Democrática A Los Límites Materiales De La Reforma Constitucional, Sergio Verdugo Sverdugor@Udd.Cl
La Objeción Democrática A Los Límites Materiales De La Reforma Constitucional, Sergio Verdugo Sverdugor@Udd.Cl
Sergio Verdugo R.
En este ensayo el autor argumenta que las teorías de algunos constitucionalistas chilenos que justifican la imposibilidad de modificar la Constitución de acuerdo a límites materiales derivados especialmente del Derecho (y jurisprudencia) Internacional, es contraria a la libre deliberación que debiera existir en nuestra democracia constitucional.
An Exploratory Study Of Investment Compliance Management In The Enron Collapse, Valencia Tamir Johnson Dr.
An Exploratory Study Of Investment Compliance Management In The Enron Collapse, Valencia Tamir Johnson Dr.
Valencia T Johnson
This paper is to critique a thesis titled An Exploratory Study of Investment Compliance Management in the Enron Collapse (2013). This thesis can be found on the IBLS database, and on the Thomas Jefferson School of Law record database. This paper mentions the Enron scandal that played a major role in shaking investors’ and stakeholders’ confidence, in part because the corporation’s administrators were able to conceal its losses for nearly five years. This thesis examines the history of Enron and describes the circumstances leading up to its collapse in 2001, paying particular attention to the violation of corporate governance laws …
Table Annexed To Article: The Mathematical Logic Of Blocking Power: From Thirteen To Forty-Four States, Peter J. Aschenbrenner
Table Annexed To Article: The Mathematical Logic Of Blocking Power: From Thirteen To Forty-Four States, Peter J. Aschenbrenner
Peter J. Aschenbrenner
OCL explores the mathematical logic of blocking power, that is, the power to block organic change. In Constitution I (the Articles of Confederation) the formula was absurdly simple. Any state, no matter how geographically small, economically insignificant and revoltingly irrelevant could block organic change desired by all the other constituents. Hence, secession orchestrated (via Constitution II) so that the first nine states (willing to do so) could secede from Rhode Island.
How Many Unique Words Did It Take To Write Our First Constitution?, Peter J. Aschenbrenner
How Many Unique Words Did It Take To Write Our First Constitution?, Peter J. Aschenbrenner
Peter J. Aschenbrenner
In 3,466 words – crafted between July, 1776 and November, 1777 – the Continental Congress created Constitution I, universally known as the Articles of Confederation. How many of these words are unique? And how many of these 3,466 words did the Philadelphia convention use in crafting the 4,321 words of Constitution II?
The Mathematical Logic Of Blocking Power: From Thirteen To Forty-Four States, Peter J. Aschenbrenner
The Mathematical Logic Of Blocking Power: From Thirteen To Forty-Four States, Peter J. Aschenbrenner
Peter J. Aschenbrenner
OCL explores the mathematical logic of blocking power, that is, the power to block organic change. In Constitution I (the Articles of Confederation) the formula was absurdly simple. Any state, no matter how geographically small, economically insignificant and revoltingly irrelevant could block organic change desired by all the other constituents. Hence, secession orchestrated (via Constitution II) so that the first nine states (willing to do so) could secede from Rhode Island.
Table Annexed To Article: Detailed Breakdown Of Note-Takers In Farrand As Extracted From Farrand’S Records Vols. 1 And 2, Peter Aschenbrenner
Table Annexed To Article: Detailed Breakdown Of Note-Takers In Farrand As Extracted From Farrand’S Records Vols. 1 And 2, Peter Aschenbrenner
Peter J. Aschenbrenner
Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.