Public Law and Legal Theory Commons^™

Past As Prologue: Old And New Feminisms, Martha Chamallas

Michigan Journal of Gender & Law

Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of …

In God We Trust: The Judicial Establishment Of American Civil Religion, 43 J. Marshall L. Rev. 869 (2010), James J. Knicely, John W. Whitehead

UIC Law Review

No abstract provided.

The Transformation Of Freedom Of Speech: Unsnarling The Twisted Roots Of Citizens United V. Fec, 44 J. Marshall L. Rev. 69 (2010), Steven J. André

UIC Law Review

No abstract provided.

Some Lessons Learned From The Aids Pandemic, 19 Annals Health L. 63 (2010), Mark E. Wojcik

UIC Law Open Access Faculty Scholarship

No abstract provided.

When And How (If At All) Does Law Constrain Official Action?, Frederick Schauer

Georgia Law Review

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This Article seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk …

Game Over? Why Recent State Supreme Court Decisions Should End The Attempted Expansion Of Public Nuisance Law, Victor E. Schwartz, Phil Goldberg, Corey Schaecher

Oklahoma Law Review

No abstract provided.

Blackstone's Ninth Amendment: A Historical Common Law Baseline For The Interpretation Of Unenumerated Rights, Jeffrey D. Jackson

Oklahoma Law Review

No abstract provided.

Medicare Meets Mephistopheles: Health Care, Government Spending, And Economic Prosperity, Neil H. Buchanan

UF Law Faculty Publications

This essay is an edited version of my remarks during the first panel of the Mississippi College Law Review’s symposium on health care reform, which was held on February 26, 2010, in Jackson, Mississippi. The essay integrates my prepared comments with my responses to comments and questions during the discussion period. I have also added some further thoughts on several of the issues that are relevant to the subject matter, especially in light of the subsequent passage of a major federal health reform bill. These remarks are necessarily brief, and they therefore can include only a hint of the issues …

Promoting Urban Agriculture As An Alternative Land Use For Vacant Properties In The City Of Detroit: Benefits, Problems, And Proposals For A Regulatory Framework For Successful Land Use Integration, John E. Mogk, Sarah Kwiatkowski, Mary J. Weindorf

Law Faculty Research Publications

No abstract provided.

Will The Real Elena Kagan Please Stand Up? Conflicting Public Images In The Supreme Court Confirmation Process, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

What images of judging did the Kagan confirmation process project?

My response to this question begins with a brief overview of existing public perceptions of the Supreme Court. I argue that a large portion of the public sees the justices as impartial arbiters who can be trusted to rule fairly. At the same time, a large portion of the public also sees the justices as political actors who are wrapped up in partisan disputes. Given these prevailing public views, we should expect the Kagan confirmation process to transmit contradictory images of judicial decisionmaking, with a portrait of judging as a …

Real Copyright Reform, Jessica D. Litman

Articles

A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current copyright …

Access To Justice In A World Of Expanding Social Capability, Marc Galanter

Fordham Urban Law Journal

"Access to Justice" was one of a set of intellectual triplets that appeared in the 1970s; its siblings were the dispute perspective in legal studies and the Alternative Dispute Resolution (ADR) movement. This article describes the evolution of access to justice and its companions and explores their expanding frontiers in the modern world.

The Tragedy Of Urban Roads: Saving Cities From Choking, Calling On Citizens To Combat Climate Change, Christian Iaione

Fordham Urban Law Journal

This Article argues that the best response to the tragedy of road congestion has to rely on market-based regulatory techniques and public policies aimed at controlling the demand-side of transportation congestion. Among market-based regulatory techniques, economists seem to favor price-based instruments over quantity-based instruments. This Article argues instead that quantity instruments, such as tradable permits of road usage and real estate development, can better internalize all the externalities that road congestion produces. This Article also advances the idea that quantity instruments are more successful tools in addressing urban congestion for four reasons: (1) they respond better to equity concerns; (2) …

State Bystander Responsibility, Monica Hakimi

Articles

International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework …

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …

Filling The Due Process Donut Hole: Abuse And Neglect Cases Between Disposition And Permanency, Josh Gupta-Kagan

Faculty Publications

No abstract provided.

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

Ronald Dworkin’S Justice For Hedgehogs And Partnership Conception Of Democracy (With A Comment To Jeremy Waldron’S 'A Majority In The Lifeboat'), Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative—or complementary—riposte …

Penggunaan Al-Qiyas Dalam Kitab Umm Al-Barahin., Engku Hassan Engku Wok Zin

Student Works (2010-2019)

This research  attempts to study the use of al-qiyas in  Umm al-Barahin, the writings of Muhammad bin Yusuf al-Sanusi. Expounded in this dissertation  is the prominent  literary figure  who successfully explained the theology doctrines of Ahl al-Sunnah wa al-Jama`ah based on the use of al-qiyas method. al-Sanusi  was an eminent scholar in the ninth century Hijrah. Kitab  Umm al-Barahin  is an expression  of his theology which applies al-qiyas to explain issues of theology according to the thoughts of al-Asya`irah. The  use of al-qiyas is a method ti create al-tasdiq  indirectly. al-Qiyas  has many forms, such as al-qiyas from al-burhan can …

Hukum-Hukum Berkaitan Pesakit Aids Dalam Urusan Ibadat Dan Kekeluargaan., Noor Hamiza Mustapa

Student Works (2010-2019)

This dissertation discusses legal rules pertaining to AIDS patients in ‘ibadat and family matters. ‘Ibadat covers prayers, fasting and hajj. Family matters deal with marriage, fasakh (annulment of marriage), sexual intercourse, pregnancy, abortion, fosterage and hadanah (custody of children). The research based on primary and secondary sources, for instances, al-Quran, al-Sunnah, classical fiqh books, related acts and enactments, dissertations, theses, journals, seminar paperworks, magazines and newspapers. Moreover, in order to acquire primary sources which are current and latest, the author make an effort to interview specialists such as medical experts and contemporary Islamic scholars. The author utilizes various methods which …