Lgbt Law Notes,
2016
New York Law School
The Presidential Election And Lgbt Law,
2016
New York Law School
The Presidential Election And Lgbt Law, Arthur S. Leonard
Other Publications
No abstract provided.
Of Progressive Property And Public Debt,
2016
Texas A&M University School of Law
Of Progressive Property And Public Debt, Christopher K. Odinet
Faculty Scholarship
Debt is property, and, because of this, property law has a lot to say about how debts are resolved. Indeed, property law is deeply woven into the fabric of the bankruptcy process — a fact that has been woefully neglected by many scholars. The ability to provide debtors with relief and the ability of creditors to demand protections from discharge or diminished payments are both concepts that are intimately tied to property law. However, despite the doctrinal workings of property law in this context, from a theoretical standpoint property law has been underutilized. This is particularly true, as this Article …
Agenda-Setting In The Regulatory State: Theory And Evidence,
2016
Texas A&M University School of Law
Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters
Faculty Scholarship
Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …
Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot),
2016
Dalhousie University Schulich School of Law
Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot), Sheila Wildeman
Articles, Book Chapters, & Popular Press
The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care …
Legal Limits And The Implementation Of The Affordable Care Act,
2016
University of Michigan Law School
Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley
Articles
Accusations of illegality have dogged the Obama Administration's efforts to implement the Affordable Care Act (ACA), the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some of the accusations have merit; indeed, it would be surprising if they did not. Even as the ACA's rollout has exposed unanticipated difficulties in the statutory design, congressional antipathy to health reform has precluded looking to the legislature to iron out those difficulties. To secure his principal achievement, President Obama has repeatedly tested the limits of executive authority in implementing the ACA. Six years after its enactment and two …
Separations Of Wealth: Inequality And The Erosion Of Checks And Balances,
2016
University of Michigan Law School
Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias
Articles
American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …
Politics And Agencies In The Administrative State: The U.S. Case,
2016
Columbia Law School
Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss
Faculty Scholarship
The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …
The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases,
2016
Northwestern Pritzker School of Law
The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd
Faculty Articles
Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method …
The Politics Of Global Humanitarianism: R2p Before And After Libya,
2016
Columbia Law School
The Politics Of Global Humanitarianism: R2p Before And After Libya, Michael W. Doyle
Faculty Scholarship
The responsibility to protect (R2P) is both a license for and a leash against forcible intervention. It succeeded in widening the scope of legitimate armed intervention by licensing some (protective) interventions but only because it was seen as a leash against other (exploitative) interventions. This chapter traces the origins of the R2P doctrine in the Kosovo and ICISS reports, highlights the special features of the 2005 Outcome Document, notes how the doctrine was strengthened in practice by careful attention to non-coercive measures in Myanmar, Kenya, and Guinea, and then examines the landmark case of its use to sanction and then …
The Guise Of The Bad,
2016
Columbia Law School
The Guise Of The Bad, Joseph Raz
Faculty Scholarship
My topic is the possibility of acting in the belief that the action is bad and for the reason that it is, as the agent believes, bad. On route, I examine another question – namely whether agents can, without having any relevant false beliefs, perform actions motivated by the badness of those actions. The main worry is the compatibility of action for the sake of the bad with the thesis of the Guise of the Good (roughly that actions undertaken with an intention to perform them are undertaken because they are, as the agents see things, good in some respects). …
Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects,
2016
Columbia Law School
Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski
Faculty Scholarship
Impact investment is attractive to many because it seems to combine support for progressive causes with an apparent commitment to the principles of a market economy. In fact, however, a rational impact investor is not simply creating demand for certain types of corporate actions; he/she is attempting to use corporate governance mechanisms to influence fiduciary decisions of the management. The cost of this tactic for the health of the capitalist economy is potentially very considerable. The American capitalist system relies heavily on a relatively fragile corporate governance arrangement in which the agency problems of a modern corporation are minimized by …
Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences,
2016
Duke Law School
Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer
Faculty Scholarship
This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …
Continuity And The Declaration Of Independence,
2016
Duke Law School
Continuity And The Declaration Of Independence, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
The Problem Of Appropriations Riders: The Bipartisan Budget Bill Of 2013 As A Case Study,
2016
Mitchell Hamline School of Law
The Problem Of Appropriations Riders: The Bipartisan Budget Bill Of 2013 As A Case Study, Irene Scharf
Mitchell Hamline Law Review
No abstract provided.
Expanding Standing To Develop Democracy: Third Party Public Interest Standing As A Tool For Emerging Democracies,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Expanding Standing To Develop Democracy: Third Party Public Interest Standing As A Tool For Emerging Democracies, Aparna Polavarapu
Scholarly Works
No abstract provided.
Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan
Scholarly Works
President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …
Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency,
2016
University of Nevada, Las Vegas -- William S. Boyd School of Law
Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher
Scholarly Works
In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.
Obama’S National Security Exceptionalism,
2016
Western New England University School of Law
Obama’S National Security Exceptionalism, Sudha Setty
Faculty Scholarship
This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the …
Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump,
2016
University of Houston Law Center
Kcon Xi Essay Introduction: Compulsory Arbitration And Adhesion Contracts In The Age Of Donald Trump, Peter Linzer
St. Mary's Law Journal
Remarks of Peter Linzer on receiving the Lifetime Achievement Award from the 11th International Contracts Conference (K-CON XI). Revised after Election Day, 2016.
