What Can The Brothers Malone Teach Us About Ficher V. University Of Texas?,
2012
University of Michigan Law School
What Can The Brothers Malone Teach Us About Ficher V. University Of Texas?, Charlie Gerstein
Michigan Law Review First Impressions
In 1975, the Brothers Malone took the entrance exam for the Boston Fire Department. At the time, the Department was under a court-ordered affirmative action plan: it divided its pool of test-takers into groups of black and white applicants and gave substantial preference to those in the former. The Brothers listed themselves as white and didn't make the cut. In 1977, the Brothers Malone again took the entrance exam for the Boston Fire department, this time listing themselves as black. The Brothers became firemen. Within a few years, someone at the Fire Department grew suspicious of the Malones. An investigation …
Assessing Divisibility In The Armed Career Criminal Act,
2012
University of Michigan Law School
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
The Constitutional Subject, Its Other, And The Perplexing Quest For An Identity Of Its Own: A Reply To My Critics,
2012
Benjamin N. Cardozo School of Law
The Constitutional Subject, Its Other, And The Perplexing Quest For An Identity Of Its Own: A Reply To My Critics, Michel Rosenfeld
Cardozo Law Review
No abstract provided.
In Defense Of Flexiphobia: How Training In Intractability Can Help Lawyers In Moments Of Perceived Emergency,
2012
Benjamin N. Cardozo School of Law
In Defense Of Flexiphobia: How Training In Intractability Can Help Lawyers In Moments Of Perceived Emergency, Richard H. Weisberg
Cardozo Law Review
No abstract provided.
The Embedded Epistemologist: Dispatches From The Legal Front,
2012
University of Miami School of Law
The Embedded Epistemologist: Dispatches From The Legal Front, Susan Haack
Articles
In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing-as it often is in legal contexts-epistemological theory may be helpful. A legal fact-finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical …
Civil War, Ceasefire, Constitution: Some Preliminary Notes,
2012
NYU School of Law
Civil War, Ceasefire, Constitution: Some Preliminary Notes, Sujit Choudhry
Cardozo Law Review
No abstract provided.
Comments On Michel Rosenfeld's The Identity Of The Constitutional Subject: Selfhood, Citizenship, Culture, And Community,
2012
University of Virginia School of Law
Comments On Michel Rosenfeld's The Identity Of The Constitutional Subject: Selfhood, Citizenship, Culture, And Community, Deborah Hellman
Cardozo Law Review
No abstract provided.
Clarifying The Normative Dimension Of Legal Realism: The Example Of Holmes's The Path Of The Law,
2012
University of San Diego
Clarifying The Normative Dimension Of Legal Realism: The Example Of Holmes's The Path Of The Law, Edmund Ursin
San Diego Law Review
In a recently published article, I examined the Legal Realism found in Leon Green's and Karl Llewellyn's tort scholarship. Brian Leiter had previously presented an insightful "philosophical reconstruction" of Legal Realism. In articulating what he sees as the descriptive and normative aspects of Legal Realism, Leiter drew most of his examples from the field of commercial law, which was the main focus of Llewellyn's scholarship. In this context he wrote that most Legal Realists made a descriptive claim about judicial decisions or, more specifically, decisions of appellate courts. Stated in its most succinct form, this descriptive claim was that judicial …
Judicial Line-Drawing And The Broader Culture: The Case Of Politics And Entertainment,
2012
University of San Diego
Judicial Line-Drawing And The Broader Culture: The Case Of Politics And Entertainment, R. George Wright
San Diego Law Review
This article puts in a broader legal and cultural context and critically evaluates Justice Scalia's reluctance to distinguish politics from entertainment or, more precisely, political speech from entertainment speech. Some may think of Justice Scalia's reluctance as the embodiment of judicial modesty or realistic practical wisdom. Others may think of it as an unnecessary expression of relativism or subjectivism that is ominous in its implications. Either way, whether we can appropriately distinguish between entertainment speech and political speech, and then apply appropriately different free speech standards in each case, says much about our status and priorities as a culture. Placing …
Cognitive Illiberalism And Institutional Debiasing Strategies,
2012
University of San Diego
Cognitive Illiberalism And Institutional Debiasing Strategies, Paul M. Secunda
San Diego Law Review
This article investigates institutional debiasing strategies that may work to further minimize conflict in society over labor and employment law decisions. In this vein, Part II seeks to distill the essentials of culturally motivated cognition and how it relates to, yet differs from, other earlier studies on the role that values and assumptions play in labor and employment law cases. Part III then comprehensively explores a spectrum of debiasing strategies for legal decisionmakers, from opinion-writing debiasing strategies to institutional strategies involving specialized courts and judges. Finally, Part IV considers the arguments against such institutions, and finally, the promise of opacity …
Bridging International Law And Rights-Based Litigation: Mapping Health-Related Rights Through The Development Of The Global Health And Human Rights Database,
2012
University of North Carolina at Chapel Hill
Bridging International Law And Rights-Based Litigation: Mapping Health-Related Rights Through The Development Of The Global Health And Human Rights Database, Benjamin Mason Meier, Oscar A. Cabrera, Ana Ayala, Lawrence O. Gostin
Georgetown Law Faculty Publications and Other Works
The O'Neill Institute for National and Global Health Law at Georgetown University, the World Health Organization, and the Lawyers Collective have come together to develop a searchable Global Health and Human Rights Database that maps the intersection of health and human rights in judgments, international and regional instruments, and national constitutions. Where states long remained unaccountable for violations of health-related human rights, litigation has arisen as a central mechanism in an expanding movement to create rights-based accountability. Facilitated by the incorporation of international human rights standards in national law, this judicial enforcement has supported the implementation of rights-based claims, giving …
Stare Decisis In The Inferior Courts Of The United States,
2012
University of Nevada, Las Vegas -- William S. Boyd School of Law
Stare Decisis In The Inferior Courts Of The United States, Joseph W. Mead
Nevada Law Journal
No abstract provided.
Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions,
2012
American University Washington College of Law
Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira Robbins
Scholarly Articles in Law Reviews & Journals
Per curiam--literally translated from Latin to "by the court"-is defined by Black's Law Dictionary as "[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion." Accordingly the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’ tenure, almost nine percent of the Court full opinions were per curiams. The prevalence …
Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny,
2012
Pepperdine University
Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso
Pepperdine Law Review
No abstract provided.
Deciphering A Duality: Understanding Conflicting Standards In Sex & Violence Censorship In U.S. Obscenity Law,
2012
Macalester College
Deciphering A Duality: Understanding Conflicting Standards In Sex & Violence Censorship In U.S. Obscenity Law, Rushabh P. Bhakta
Political Science Honors Projects
This research examines the division in US obscenity law that enables strict sex censorship while overlooking violence. By investigating the social and legal development of obscenity in US culture, I argue that the contemporary duality in obscenity censorship standards arose from a family of forces consisting of faith, economy, and identity in early American history. While sexuality ingrained itself in American culture as a commodity in need of regulation, violence was decentralized from the state and proliferated. This phenomenon led to a prioritization of suppressing sexual speech over violent speech. This paper traces the emergence this duality and its source.
Cornography: Perverse Incentives And The United States Corn Subsidy,
2012
Demos, New York City
Cornography: Perverse Incentives And The United States Corn Subsidy, Anthony Kammer
Journal of Food Law & Policy
Among the most important functions we have afforded to the U.S. Congress is the power to reshape social and economic incentive structures through legislation. Proceeding from the enumerated powers under the Constitution and using a complex toolbox of legislative and regulatory innovations, the federal legislature has enormous power to transform the types of behavior that people will perceive as self-interested throughout our economy and thus how those same people are likely to act. Congress can, among other things, create new forms of criminal and civil liability, establish entitlement systems, subsidize industries, encourage behavior through the tax code, regulate interactions among …
Misappropriation And Patenting Of Traditional Ethnobotanical Knowledge And Genetic Resources,
2012
University of Arkansas, Fayetteville
Misappropriation And Patenting Of Traditional Ethnobotanical Knowledge And Genetic Resources, Maxim V. Gubarev
Journal of Food Law & Policy
Four-fifths of all pharmaceuticals have been developed from natural plant resources, and native plant resources similarly play a significant role in the development of new and improved crops.
Put A Cork In It: The Use Of H.R. 161 To End Direct Wine Shipping Throughout The States Once And For All,
2012
University of Arkansas, Fayetteville
Put A Cork In It: The Use Of H.R. 161 To End Direct Wine Shipping Throughout The States Once And For All, Victoria H. Jones
Journal of Food Law & Policy
Due to Congress' recent agenda, oenophiles throughout the country are up in arms about the possible threat to their beloved wine. Wine lovers and other alcohol enthusiasts face the very real fear that access to their favorite products may soon be heavily restricted. This is in large part attributed to the fact that House Resolution 1161 would effectively change the ways in which states regulate alcohol shipment. The possible implications of this bill range from the forced shutdown of many wineries and distilleries due to lack of funding, to the smaller effects of regulation such as the inability of customers …
European Union Food Law Update,
2012
European Sugar Association, Brussels
European Union Food Law Update, Emilie Majster
Journal of Food Law & Policy
Nutrition is increasingly important in both the European Union (EU) and in global food-related policy making. Governments, which up until recently have focused on regulating food products based on a food safety perspective, are now turning to regulate from a nutritional aspect.
Cows V. Capitalists: Visions Of A Post-Carbon Economy,
2012
West Virginia University, Morgantown
Cows V. Capitalists: Visions Of A Post-Carbon Economy, Alison Peck
Journal of Food Law & Policy
I was tempted to entitle this book review something like, "Why the Farm Bill Is the Key to Our Energy Future (Hint: It's Not About Ethanol, Methane Emissions, or Carbon Sinks)." But in addition to being too long to fit across the header of a law review page, such a title would have been slightly misleading. Actually, in Simon Fairlie's view, our future is about ethanol, methane emissions, and carbon sinks - but not in the way our current agricultural policies understand and deal with these subjects.
