Public Law and Legal Theory Commons^™

Redundant Public-Private Enforcement, Zachary D. Clopton

Vanderbilt Law Review

Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality of the modern regulatory state. Redundant public-private enforcement, in which public and private actors have overlapping authority to enforce the law, is ubiquitous. Redundant enforcement also is noticeably underrepresented in the substantial literature on private and public enforcement, which typically treats government agencies and private attorneys general as substitutes …

The Federal Government's Usurpation Of Local Control From Public Schools: A Historical Analysis Of Politics, Law, And Reaction, Brett Geier

Barry Law Review

No abstract provided.

Citizens Versus Bondholders, Richard C. Schragger

Fordham Urban Law Journal

No abstract provided.

Engaging Deliberative Democracy At The Grassroots: Prioritizing The Effects Of The Fiscal Crisis In New York At The Local Government Level, Patricia E. Salkin, Charles Gottlieb

Fordham Urban Law Journal

No abstract provided.

Will Grassroots Democracy Solve The Government Fiscal Crisis?, Julie M. Chesnik

Fordham Urban Law Journal

No abstract provided.

Collateral Consequences: How Reliable Data And Resources Can Change The Way Law Is Practiced, Christopher Gowen, Erin Magary

Fordham Urban Law Journal

No abstract provided.

Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett

Northwestern University Law Review

The Take Care Clause obligates the President to enforce the law. Yet increasingly, presidents use nonenforcement to unilaterally waive legislative provisions to serve their executive policy goals. In doing so, the President’s inaction takes the practical form of a congressional repeal—a task that is solely reserved for Congress under the Constitution. Presidential nonenforcement therefore usurps Congress’s unique responsibility in setting the national policy agenda.

This Note addresses whether Congress has standing to sue in instances of presidential nonenforcement to realign and reaffirm Congress’s unique legislative role. In answering this question, this Note examines legislative standing precedent and argues that the …

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Reforming The Federal Arbitration Act To Equalize The Adjudication Rights Of Powerful And Weak Parties, Stephen A. Plass

Catholic University Law Review

Providing an extensive historical overview of federal arbitration jurisprudence and the Federal Arbitration Act (FAA), this article argues that the Supreme Court has misinterpreted FAA provisions and goals, thereby drastically changing the law of labor arbitration to the detriment of American workers and consumers. Namely, original congressional policy goals (providing speedy, fair and informal alternatives to court adjudication) have been countermanded by the Supreme Court’s interpretation of arbitration law over the last 50 years. As a result, modern arbitration law sets up an imbalance of power between employers/merchants and workers/consumers who are forced into lengthy and expensive procedures before they …

Unmanned Arial Systems (Uas) In The Local Public Safety Environment: A Review, Hiram Taylor, Blount-Hill Blount-Hill, Charles R. Jennings

Publications and Research

No abstract provided.

The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen

Barry Law Review

No abstract provided.

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

All Faculty Scholarship

We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that courts …

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Michigan Journal of International Law

This Article proceeds as follows. Part II begins by considering custom’s design features, which the authors distinguish from the canonical elements of custom (state practice and opinio juris) and the individual doctrines associated with CIL. Specifically, they contend that, as an ideal-type, custom is non-negotiated, unwritten, and universal, three characteristics that distinguish CIL from both treaties and soft law, which are almost always negotiated, written, and rarely universal either in formation or application. These design features help to explain some of custom’s peculiar doctrinal characteristics, and they cut across the doctrinal divide which is said to distinguish “traditional” and …

Spaces For Sharing: Micro-Units Amid The Shift From Ownership To Access, John Infranca

Fordham Urban Law Journal

No abstract provided.

Transubstantiation In Canadian Public Law: Processing Substance And Instantiating Process, Mary Liston

All Faculty Publications

Canadian public law blurs process and substance, a result confirming the prevailing view that this dichotomy ought never to be conceived as a simplistic bright-line distinction. Recent developments have created more than just a blurring but, rather, a strong linking or even fusion of the two. This paper probes the implications of these developments in public law. Section two briefly presents the historic and jurisprudential distinctions between process and substance and assesses its current legal import. Here I argue that judicially created analytic frameworks could assist by bringing a process-substance problem to the surface and constraining its potentially pernicious effects. …

Hate Speech And Double Standards, Thomas M. Keck

Political Science - All Scholarship

Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson’s choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands, they …

Confronting Power In Public Law, Kate Andrias

Articles

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …

Confronting Power In Public Law, Kate Andrias

Faculty Scholarship

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is – or should be – distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.

Online Defamation, Legal Concepts, And The Good Samaritan, Benjamin C. Zipursky

Valparaiso University Law Review

No abstract provided.