703 results
Search Results
2. International criminal law - sexual and gender-based crimes - ICC outlines policies to improve prosecutorial outcomes: the Office of the Prosecutor of the ICC, policy paper on sexual and gender-based crimes
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Prosecution -- Laws, regulations and rules ,Sex crimes -- Laws, regulations and rules ,War crimes -- Laws, regulations and rules ,Government regulation ,Law ,International Criminal Court -- Standards - Abstract
On March 7, 2014, the International Criminal Court (ICC) issued a judgment in the case of Prosecutor v. Katanga. (1) Germain Katanga was acquitted of rape and sexual slavery, charged [...]
- Published
- 2014
3. The Torture Papers: The Road to Abu Ghraib.
- Subjects
The Torture Papers: The Road to Abu Ghraib (Book) -- Greenberg, Karen J. -- Dratel, Joshua L. ,Books -- Book reviews - Abstract
THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB. Edited by Karen J. Greenberg and Joshua L. Dratel. Introduction by Anthony Lewis. New York: Cambridge University Press. 2005. Pp. xxxiv, 1249. [...]
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- 2005
4. STANDING OF PURCHASERS FROM NONCONSPIRATORS TO CHALLENGE PRICE-FIXING CONSPIRACY: Mid-West Paper Products Co. v. Continental Group, Inc.
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CONSPIRACY , *PRICE fixing -- Law & legislation - Abstract
Provides information on the U.S. court case Mid-West Paper Products Co. versus Continental Group Inc. which deals with the challenge posed by the standing of purchasers from non-conspirators on price-fixing conspiracy. Allegations against Mid-West Paper; Argument raised by the plaintiffs against the defendant's conspiracy; Conclusion that the court reached for the case.
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- 1980
- Full Text
- View/download PDF
5. ORGANIZATIONAL PAPERS AND THE PRIVILEGE AGAINST SELF-INCRIMINATION.
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PROPERTY rights , *LEGAL evidence , *LEGISLATIVE amendments - Abstract
Argues that individuals should be able to invoke fifth amendment protection for both personal and organizational documents. Rationales invoked by the U.S. Supreme Court to support its distinction between personal and organizational documents; Emphasis on property rights; Ways in which the act of producing documents may fall within the category of testimonial evidence.
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- 1986
- Full Text
- View/download PDF
6. LIBERTY'S BLUEPRINT HOW MADISON AND HAMILTON WROTE THE FEDERALIST PAPERS, DEFINED THE CONSTITUTION, AND MADE DEMOCRACY SAFE FOR THE WORLD.
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LIBERTY , *NONFICTION - Abstract
The article reviews the book "Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution & Made Democracy Safe for the World," by Michael I. Meyerson.
- Published
- 2009
7. Separation of Powers — Congressional Oversight — Presidential Subpoenas — Trump v. Mazars USA, LLP.
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LEGISLATIVE oversight , *ELECTION of legislators , *PRESIDENTIAL succession , *SUBPOENA - Abstract
The article focuses on Congressional Oversight and Presidential Subpoenas between Trump v. Mazars USA, LLP. Topics include examines that the Court held that congressional subpoenas of the President's private papers implicate special separation of powers concerns that must be weighed in evaluating the subpoenas' validity.
- Published
- 2020
8. THE INCENTIVE GAP: REASSESSING U.S. POLICIES TO SECURE NUCLEAR ARSENALS WORLDWIDE.
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LAW , *NUCLEAR weapons (International law) , *NUCLEAR warfare , *GOVERNMENT policy , *NUCLEAR weapons testing laws , *LEGISLATION , *POLICY sciences , *INTERNATIONAL relations - Abstract
The article focuses on reassessing the U.S. policies to secure nuclear arsenals worldwide. Accordingly, the paper considers the questions facing policymakers charged with designing a strategy to secure nuclear weapons and material worldwide from theft and use by terrorists. In tackling these questions, the paper proceeds in five parts such as the outlining of U.S. policy for preventing state behaviors that could facilitate nuclear terrorism, assessing the results of this policy, concluding that it has failed to produce adequate levels of fissile material security, exploring the reasons for this lack of progress, and the consideration of a range of potential options for creating stronger incentives for states to secure their nuclear stockpiles.
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- 2008
9. A FEDERAL ADMINISTRATIVE APPROACH TO REDISTRICTING REFORM.
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LAW , *REFORMS , *LAW reform , *CONSTITUTIONAL courts , *LEGISLATORS , *LEGISLATION , *GOVERNMENT policy - Abstract
The article focuses on the federal administrative approach to redistricting reform in the U.S. Accordingly, the paper advocates the adoption of limited, selective federal oversight of congressional redistricting plans created by partisan legislatures, with an eye toward encouraging the use of independent redistricting commissions. Moreover, the paper also suggests the creation of a federal agency authorized to review partisan redistricting at the request of a substantial minority of a state's legislature, while providing a safe harbor for states that use independent agencies to redraw district lines.
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- 2008
10. REGISTERING DISAGREEMENT: REGISTRATION IN MODERN AMERICAN TRADEMARK LAW.
- Author
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Tushnet, Rebecca
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TRADEMARK application & registration -- Law & legislation , *TRADEMARK laws , *LEGAL rights , *FEDERAL courts , *LAW & economics , *ACTIONS & defenses (Law) - Abstract
Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar) marks is broken. Courts too readily find too many acts to be infringing even when they’re harmless or actually useful to consumers. Trademark practitioners, meanwhile, while often quite approving of broad interpretations of trademark law, widely recognize that our trademark registration system has significant practical problems. What we haven’t done is try to unite concerns over the expansion of trademark rights with concerns over the registration system and explain their relationship to each other. Registration offers some of the most challenging puzzles in trademark law. Consider: If the mark REDSKINS for a football team is disparaging and its trademark registration therefore invalid, can trademark law nonetheless protect the team against unauthorized uses of the term? This question became more than theoretical when a district court recently upheld the invalidation of the REDSKINS registrations, a ruling now on appeal and likely headed to the Supreme Court. Or suppose the PTO determines that, in the abstract, an applied-for trademark is likely to cause confusion with another previously registered mark. I f the applicant decides to use the mark anyway, without a registration, should the PTO’s determination bind a federal court asked to determine whether the new mark, as actually used, causes confusion with that previously registered mark? The Supreme Court just decided this issue in a way that generated large-scale uncertainty about the new relationship between registration and infringement liability. These questions, and a number of others, highlight the need for renewed attention to trademark registration as such. Registration provides opportunities to limit trademark’s current structurelessness. Specifically, registration works best in a system that doesn’t aim to search out and extirpate every possible instance of confusion, instead recognizing multiple reasons that we might avoid fact-intensive confusion inquiries and either ban or allow certain market behaviors. Moreover, maintaining the registration system requires the investment of substantial government and private resources, which is currently almost irrelevant at the enforcement stage. Applicants and the PTO spend much time and effort crafting the equivalent of an exquisitely detailed origami crane; rather than considering the details, courts then ask the equivalent of “is this paper folded? and move on. Not only is this a waste of resources, but it also leads courts to misunderstand the proper scope of a registration. There are a number of changes, ranging from small tweaks to sweeping statutory reforms and the rejection of the Supreme Court’s ahistorical conclusion that registration is a matter of factual accident rather than an important distinction between types of marks, that could improve the law to the benefit of trademark owners and nonowners alike. [ABSTRACT FROM AUTHOR]
- Published
- 2017
11. The path not taken: H.L.A. Hart's Harvard essay on discretion
- Author
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Lacey, Nicola
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Discretion (Essay) -- Evaluation ,Law - Abstract
It is an extraordinary privilege to be able to introduce a previously unpublished essay by H. L. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light. It is particularly apt that H. L. A. Hart's essay should be published by this Review, appearing fifty-seven years after it was written in the early months of his visit to Harvard, thus joining a distinguished tradition of posthumously published scholarship of the 1950s, most notably Lon Fuller's The Forms and Limits of Adjudication, (1) and Henry Hart and Albert Sacks's The Legal Process. (2) Its publication is also timely, albeit long delayed, in that it comes hard on the heels of a period in which the intellectual history of legal thought has been the subject of wide interest and some very powerful scholarship. (3) Hart's year at Harvard significantly shaped the course of his subsequent work. (4) The essay now being published, entitled Discretion, (5) helps to explain why that was the case, for it is a testimony to the intensity of his engagement with colleagues in the Law School. During the course of the year, he laid the foundations for the vast majority of his work over the next decade: for Causation in the Law, (6) for The Concept of Law, (7) and for Punishment and Responsibility. (8) The stimulating American context, as he later put it, 'relaxed one's neuroses'; '[i]deas started pullulating at a rather alarming rate. I thought, 'Am I going mad?': I was getting so many different things inside.' (9) In his Essay, Shaw presents a searching analysis of the paper's argument as well as a persuasive assessment of its overall significance, and I do not propose to tread the same ground. In this brief introduction, I shall rather reflect, from a biographer's viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart's ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart's work, Discretion features a notable emphasis on the significance of institutional factors in our understanding of the nature of legal decision-making; and I argue that Hart's failure fully to develop this insight in the essay, or to build on it in his subsequent work, derives from the fact that such a development would have necessitated a diversion from the philosophical issues that were his core intellectual concern, and moreover would have presented certain dangers to his conception of legal positivism. I shall conclude by considering what contribution the essay makes to our overall interpretation and evaluation of Hart's legal philosophy., I. H. L. A. HART AND HARVARD'S 'YEAR OF JURISPRUDENCE' I should set out by confessing that when Geoffrey Shaw told me two years ago that he intended to work [...]
- Published
- 2013
12. OLD-SCHOOL/NEW-SCHOOL SPEECH REGULATION.
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Balkin, Jack M.
- Subjects
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FREEDOM of speech , *GOVERNMENT regulation -- Social aspects , *NEW York Times Co. v. Sullivan , *DAMAGES (Law) , *FREEDOM of expression -- Social aspects ,NEW York Times Co. v. United States - Abstract
The article discusses various freedom of speech regulations in America as of June 2014, focusing on the U.S. Supreme Court's rulings in the legal cases New York Times Co. v. Sullivan and New York Times Co. v. United States (Pentagon Papers) which deal with the First Amendment to the nation's Constitution and civil damages for alleged defamation. Prior restraints, democratic legitimacy, and freedom of expression rights in America are mentioned. U.S. government practices are also examined.
- Published
- 2014
13. APPOINTING STATE ATTORNEYS GENERAL: EVALUATING THE UNBUNDLED STATE EXECUTIVE.
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UNITARY executive theory (Consititutional law) , *EXECUTIVE power , *CLAUSES (Law) , *STATE government personnel , *U.S. states ,UNITED States attorneys general - Abstract
The article discusses state executive offices and appointments for state attorneys general in the U.S. as of January 2014, focusing on a push for the establishment of additional state unitary executive systems in which a single official presides over the entire executive branch. Executive nominations, legislative confirmations, and executive removal power are mentioned, along with the U.S. Constitution's Vesting Clause and the arguments set forth in the "Federalist Papers."
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- 2014
14. H. L. A. HART'S LOST ESSAY: DISCRETION AND THE LEGAL PROCESS SCHOOL.
- Author
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Shaw, Geoffrey C.
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JUDICIAL discretion , *DECISION making in law , *RULE of law , *VISITING professors , *HISTORY of the philosophy of law , *TWENTIETH century , *HISTORY , *POLITICAL attitudes - Abstract
This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart's paper -- Discretion -- in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart's work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart's work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart's year as a visiting professor. Hart's Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history. [ABSTRACT FROM AUTHOR]
- Published
- 2013
15. Clean Water Act -- Auer Deference -- Decker v. Northwest Environmental Defense Center.
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JUDICIAL deference , *WATER laws , *CITIZEN suits (Civil procedure) , *ACTIONS & defenses (Law) ,DECKER v. Northwest Environmental Defense Center (Supreme Court case) ,AUER v. Robbins (Supreme Court case) ,STATE statutes (United States) - Abstract
The article discusses the U.S. Supreme Court's (USSC's) ruling in the 2013 case Decker v. Northwest Environmental Defense Center (NEDC) which deals with the U.S. Clean Water Act (CWA) and judicial deference for an American government agency's interpretation of its own regulations in the aftermath of the USSC's judgment in the case Auer v. Robbins. According to the article, the NEDC filed a lawsuit under the CWA's citizen-suit provision against various logging and paper-product companies.
- Published
- 2013
16. IMMIGRATION LAW -- STATUTORY INTERPRETATION -- SEVENTH CIRCUIT DEFERS TO AGENCY INTERPRETATION OF EVIDENTIARY STANDARDS. -- Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008).
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LEGAL judgments , *IMMIGRATION law , *ACTIONS & defenses (Law) - Abstract
The article discusses the court case, Ibrahim Ali versus Michael B. Mukasey, in which the Seventh Circuit gave in to a statutory interpretation put forth by the Board of Immigration Appeals in the U.S. The court held that an immigration court could consider additional evidence beyond the charging papers and judgment of conviction. This decision countermanded conflicting Seventh Circuit precedents, elucidating that administrative discretion belongs to the agency rather than to the court.
- Published
- 2009
17. DEFENDING FEDERALISM: REALIZING PUBLIUS'S VISION.
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FEDERAL government , *FEDERAL legislation , *CONSTITUTIONS , *DESPOTISM ,UNITED States politics & government - Abstract
The article focuses on the vision of Publius, a collective pseudonym for the authors of the publication "Federalist Papers" namely Alexander Hamilton, James Madison, and John Jay. It discusses the way Publius defends a Constitution that focuses on the creation of power that the U.S. government lacked during the Articles of Confederation period, but taking into considerations the tyranny that it may bring. It is noted that a system containing "auxiliary precautions" against tyrannical usurpations is created. The vertical competition model and the guard dog model proposed by Publius are presented, as well as the features and implications of such models.
- Published
- 2008
18. NEVER AGAIN SHOULD A PEOPLE STARVE IN A WORLD OF PLENTY.
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JUSTICE , *EQUALITY , *ETHICS , *STATUES , *LEGAL professions , *LAWYERS , *FAIRNESS , *CONDUCT of life - Abstract
The article explores the two important concepts such as morality and justice inspired by the statue in Cambridge Common in the U.S. In its vivid depiction of a wealthy individual who finds himself in a position to help a poor individual, the statue raises fundamental questions of morality and obligation toward others. In its reminder of the impoverishment of some groups relative to other groups in society, the statue also draws on deep conceptions of justice and inequality between classes. Moreover, the paper investigates how morality and justice affect the choice of legal professions, arguing that legal career choices should involve good faith efforts to serve both of these noble goals.
- Published
- 2008
19. THE EXTRATERRITORIAL CONSTITUTION AND THE INTERPRETIVE RELEVANCE OF INTERNATIONAL LAW.
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LAW , *CONSTITUTIONS , *INTERNATIONAL law , *CONSTITUTIONAL law , *POLITICAL science , *CONSTITUTIONAL conventions , *HUMANITARIAN law , *NATURAL law - Abstract
The article discusses the extraterritorial constitution and the interpretive relevance of international law in the U.S. Accordingly, the paper proceeds in three parts. The first part discusses the state of the law following United States versus Verdugo-Urquidez and the contemporary significance of the question of extraterritorial application of the Constitution. The second part situates the impracticable and anomalous standard in historical context, drawing on the nineteenth-century use of international law to identify powers inherent in sovereignty. The third part argues that in the context of the war on terrorism, it is sensible to look to international humanitarian law to guide the inquiry into when certain rights apply extraterritorially.
- Published
- 2008
20. TOWARD A TWENTY-FIRST-CENTURY JACOBSON V. MASSACHUSETTS.
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LAW , *VACCINES , *PREVENTIVE medicine , *IMMUNIZATION , *VACCINATION , *LEGISLATION , *GOVERNMENT policy , *HEALTH , *VACCINATION policies - Abstract
The article focuses on the issues of vaccine law in the U.S. Accordingly, the paper suggests that vaccine law should be distinguished between two kinds of necessity such as the medical necessity and practical necessity. Those vaccines classified as medically necessary would be those that are the only known viable defenses against diseases taking hold in a community. However, practically necessary vaccines are those to which there are alternatives, but which alternatives are, in practice, not used by a significant number of people.
- Published
- 2008
21. HARMONIZING COPYRIGHT'S INTERNATIONALIZATION WITH DOMESTIC CONSTITUTIONAL CONSTRAINTS.
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COPYRIGHT , *GLOBALIZATION , *INTELLECTUAL property , *INTANGIBLE property , *LEGISLATION , *LEGISLATIVE power , *GOVERNMENT policy , *COMMERCIAL law - Abstract
The article discusses the internationalization of copyright in the U.S. Accordingly, the paper proceeds in three parts. The first part is the discussion of the details of the internationalization of copyright which provides examples of domestic legislation passed in response to international obligations and standards, and canvasses cases that have taken stock of this new globalized copyright. The second part turns to the handful of scholars who have responded to the new international side of copyright. The third part introduces a new method of judicial review that seeks to bridge the gaps and to respond to what may be the greatest danger of not substantively reviewing domestic law purporting to comply with international obligations.
- Published
- 2008
22. THE MINISTERIAL EXCEPTION TO TITLE VII: THE CASE FOR A DEFERENTIAL PRIMARY DUTIES TEST.
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LAW , *RELIGION & law , *LABOR laws , *RELIGION & justice , *JUDICIAL review , *CONSTITUTIONAL law , *DELEGATION of powers , *RULE of law - Abstract
The article discusses the ministerial exemption for religious employers in the U.S. Accordingly, the paper proceeds in five parts. The first part describes the history of the ministerial exception. The second part provides details of the constitutional bases for the exception under both Religion Clauses, and argues that the expressive association right further justifies the ministerial exception even though the case law has not yet recognized this rationale. The third part evaluates the primary duties test used to trigger the ministerial exception. The fourth part encourages adoption of a deferential primary duties test to cure these constitutional defects. The last part responds to potential criticisms of a deferential primary duties test.
- Published
- 2008
23. THE RIGHTS OF CRIMINAL DEFENDANTS AND THE SUBPOENA DUCES TECUM: THE AFTERMATH OF FISHER V. UNITED STATES.
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SUBPOENA , *CIVIL rights , *LEGAL judgments - Abstract
Analyzes the application of the U.S. Supreme Court ruling on the case Fisher v. United States for cases concerning the use of subpoena duces tecum and the rights of criminal defendants in the U.S. Background on the ruling of the U.S. Supreme Court; Discussion on the concept of implicit authentication; Examination of the first amendment protection for personal paper.
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- 1982
- Full Text
- View/download PDF
24. THE FORMS AND LIMITS OF ADJUDICATION.
- Author
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Fuller, Lon L.
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ADMINISTRATIVE procedure , *JURISPRUDENCE , *COURTS - Abstract
The initial version of The Forms and Limits of Adjudication was circulated to the members of the Legal Philosophy Discussion Group at Harvard Law School in 1957. A revised and expanded version was prepared in 1959 for use in Mr. Fuller's course in Jurisprudence and for discussion at the Round Table on Jurisprudence at the 1959 meeting of the Association of American Law Schools. Further refinements resulted in a third version for classroom use in 1961 ; I have followed that version here. The editing has consisted principally of minor grammatical corrections and changes of punctuation; the addition of several paragraphs in Part VI, section 2 (see note 22) ; and the identification, where possible, of important references and sources, which are inserted in brackets. I am deeply grateful to Mrs. Marjorie Fuller, who made it possible for me to examine the library and private papers of her late husband. The complete essay has never before been published, but portions of it were included in two articles by Mr. Fuller: Adjudication and the Rule of Law, 54 PROC. AM. Soc'Y INT'L L. I (1960) and Collective Bargaining and the Arbitrator, 1963 Wis. L. REv. 3. Mr. Fuller also granted permission for the printing of a substantial part of the essay in AMERICAN COURT SYSTEMS: READINGS IN JUDICIAL PROCESS AND BEHAVIOR (S. Goldman & A. Sarat eds. i978). That Mr. Fuller never published the entire essay is due, I believe, to a plan he formulated in 1958 or 1959 to expand it into a book of the same title. By 1960 the projected volume had become The Principles of Social Order, an essay in eunomics--that is, in Mr... [ABSTRACT FROM AUTHOR]
- Published
- 1978
- Full Text
- View/download PDF
25. CONSTITUTIONAL LAW.
- Subjects
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CONSTITUTIONAL law , *SUBSIDIES laws , *AMERICAN business enterprises - Abstract
Focuses on the Constitutional Law in the United States. State Subsidies Favoring Local Business; Term of the U.S. Supreme Court on Death Penalty; Fifth Amendment Protection of Private Papers.
- Published
- 1976
26. The debate that never was
- Author
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Stavropoulos, Nicos
- Subjects
Legal philosophy -- Analysis ,Morality -- Analysis ,Law - Abstract
In September 1994, Professor Ronald Dworkin presented a new paper at the NYU Colloquium in Legal, Political, and Social Philosophy. Earlier that year, the second edition of Professor H.L.A. Hart's [...]
- Published
- 2017
27. RECENT PUBLICATIONS.
- Subjects
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BOOKS - Abstract
Presents information on several books on law and legislation. 'The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Diamond,' edited by Jacques M. Quen; 'Child Witnesses: Fragile Voices in the American Legal System,' by Lucy S. McGough; 'From Newton's Sleep,' by Joseph Vining; 'Speaking of Race, Speaking of Sex,' by Henry Louis Gates Jr., Anthony P. Griffin, Donald C. Lively, Robert C. Post, William B. Rubenstein and Nadine Strossen.
- Published
- 1996
28. H. L. A. Hart's lost essay: 'Discretion' and the legal process dchool
- Author
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Shaw, Geoffrey C.
- Subjects
Discretion (Essay) -- Evaluation ,Law ,Evaluation ,Analysis - Abstract
B. What Is Discretion? 1. The Analytical Approach to Definition.--Hart devoted a large portion of his paper to the first question: 'What is discretion ...?' It was a classic application [...]
- Published
- 2013
29. RECENT PUBLICATIONS.
- Subjects
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LAW in literature - Abstract
Reviews several books related to law. "The Day the Presses Stopped: A History of the Pentagon Papers Case," by David Rudenstine; "Liberty, Property and Privacy: Toward a Jurisprudence of Substantive Due Process," by Edward Keynes; "The Spirit of Traditional Chinese Law," by Geoffrey MacCormack.
- Published
- 1997
30. A justification for allowing fragmentation in copyright
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Right of property -- Laws, regulations and rules -- Evaluation ,Copyright law -- Evaluation ,Law - Abstract
Imagine a writer who after a flash of inspiration conceives of a poem and commits it to paper. Copyright law grants the author a standard bundle of rights--rights to copy, [...]
- Published
- 2011
31. DNA and the Criminal Justice System: The Technology of Justice.
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DNA and the Criminal Justice System: The Technology of Justice (Book) -- Laser, David ,Books -- Book reviews - Abstract
DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE. Edited by David Lazer. Cambridge, Mass.: MIT Press. 2004. Pp. xviii, 414. $27.00 (paper). DNA evidence has led to the [...]
- Published
- 2005
32. One Electorate Under God? A Dialogue on Religion and American Politics.
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One Electorate Under God? A Dialogue on Religion and American Politics (Book) -- Dionne, E.J., Jr. ,Books -- Book reviews - Abstract
ONE ELECTORATE UNDER GOD?: A DIALOGUE ON RELIGION & AMERICAN POLITICS. Edited by E.J. Dionne, Jr. et al. Washington, D.C.: Brookings Institution Press. 2004. Pp. xv, 239. $17.95 (paper). God [...]
- Published
- 2005
33. Speaking of Crime: The Language of Criminal Justice.
- Subjects
Speaking of Crime: The Language of Criminal Justice (Book) -- Solan, Lawrence M. -- Tiersma, Peter M. ,Books -- Book reviews - Abstract
SPEAKING OF CRIME: THE LANGUAGE OF CRIMINAL JUSTICE. By Lawrence M. Solan & Peter M. Tiersma. Chicago, Ill.: University of Chicago Press. 2005. Pp. x, 289. $22.00 (paper). "So when [...]
- Published
- 2005
34. THE NEW NEGATIVE HABEAS EQUITY
- Author
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Kovarsky, Lee
- Subjects
Context (Linguistics) -- Analysis ,Equity (Law) -- Laws, regulations and rules ,Judicial discretion -- Laws, regulations and rules ,Legal authorities -- Evaluation ,Federalism -- Analysis ,Habeas corpus -- Laws, regulations and rules ,Judgments -- Laws, regulations and rules ,Skepticism -- Analysis ,Government regulation ,Law ,Judicial Code (28 U.S.C. 2243) (28 U.S.C. 2241) - Abstract
A federal statute restricts the habeas corpus remedy, but do federal judges also have equitable discretion to deny relief to unlawfully detained prisoners? Over the last several terms, the Supreme Court has begun to embrace this novel, ambitious view of habeas law. Although the Court has long cited what I call 'negative' equity as a source of authority to devise its own limits on habeas relief, it had never--until recently--suggested that lower courts have free-floating discretion to deny relief to which prisoners are otherwise entitled. This Article, which consists of three parts, considers and refutes the 'new negative equity.' In Part I, I set forth the older version of negative equity and then describe the recent departure therefrom. In Part II, I explain why the new negative equity doesn't follow from any text-centered approach to statutory interpretation--relying substantially on context and drawing heavily from a statutory history that decisional law and academic discourse have thus far neglected. In Part III, I focus on the most troubling register of the new negative habeas equity, which involves a rule against habeas relief for those who are not 'factually innocent.' Equitable power to refuse relief might be consistent with 'comity, finality, and federalism,' as it were, but orphaned policy preferences are not law. Under the text-centered approach to law endorsed by most who favor habeas restrictions, such a practice is impossible to justify. Although no interpreter can be perfectly certain of statutory meaning, the new negative equity is both inconsistent with habeas history and a least-plausible reading of the modern statute., CONTENTS INTRODUCTION 2223 I. THE RUPTURE 2226 A. Habeas and Equity: The Standard Story 2227 B. The New Negative Equity 2229 II. EVALUATING NEGATIVE EQUITY 2232 A. Analyzing [section] 2243 [...]
- Published
- 2024
35. THE MAKING OF PRESIDENTIAL ADMINISTRATION
- Author
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Ahmed, Ashraf, Menand, Lev, and Rosenblum, Noah A.
- Subjects
United States. Office of Information and Regulatory Affairs -- Powers and duties -- History ,Administrative procedure -- Laws, regulations and rules -- History ,Legislative power -- Laws, regulations and rules -- History ,Executive orders -- Laws, regulations and rules -- History ,Separation of powers -- Laws, regulations and rules -- History ,Judicial review of administrative acts -- Laws, regulations and rules -- History ,Government regulation ,Law ,Executive Order on Federal Regulation - Abstract
Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it wasnot always so. For most of American history--indeed until relatively recently--Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative--exemplified by then-Professor Elena Kagan's seminal article Presidential Administration--is Whig history. It offers a depoliticized interpretation that presents White House primacy as the product of steady progress toward greater administrative rationality. This Article offers a historical corrective. It explains how 'administration under law' was lost and replaced with a new constitutional baseline, 'presidential administration.' It is both an account of constitutional change--how one understanding of constitutional text and structure gave way to a different one--as well as a history of the regulatory state and how, beginning in the 1980s, federal officials reworked the relationship between the President, Congress, and administrative agencies in order to expand the role of market actors in governing economic activity. The Article draws attention to the intense political conflict that accompanied the advent of presidential administration. What is today bipartisan was originally nothing of the sort. It also reveals how a new interpretation of Article II took hold without any fundamental doctrinal or statutory change or shift in formal law. It highlights the emergence of a neoliberal consensus around aspects of economic regulation that incentivized and buttressed presidential administration as an approach to administrative governance. And it reveals the relative novelty of originalist arguments about the 'Unitary Executive.', CONTENTS INTRODUCTION 2133 I. THE MANAGERIAL PRESIDENCY BEFORE REAGAN 2143 A. The Progressive Era 2144 B. The Nixon Administration 2146 C. President Carter's Turn 2150 II. PRESIDENT REAGAN'S GAMBIT 2153 [...]
- Published
- 2024
36. IMPEDIMENTS TO REPRODUCTIVE JUSTICE: THE CRIMINAL LEGAL SYSTEM AND AMERICAN CARCERAL STATE
- Subjects
Narcotics, Control of -- History -- Laws, regulations and rules ,Women criminals -- Care and treatment -- Laws, regulations and rules -- History ,Sterilization, Eugenic -- Laws, regulations and rules -- History ,Slavery -- History -- Demographic aspects ,Reproductive rights -- Laws, regulations and rules -- History ,Abortion -- Laws, regulations and rules -- History ,Government regulation ,Law ,Dobbs v. Jackson Women's Health Organization (142 S. Ct. 2228 (2022)) - Abstract
In July 2019, at approximately four months pregnant, Lauren Kent sent a message to her jail's private medical contractor that read: 'PLEASE IM BEGGING YOU I NEED A DOCTOR.' (1) [...]
- Published
- 2024
37. IN MEMORIAM: PROFESSOR CHARLES J. OGLETREE, JR
- Author
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Obama, Barack, Obama,Michelle, Fairfax, Roger A., Jr., and Jackson, Ketanji Brown
- Subjects
Law teachers -- Testimonials ,Law ,Harvard Law School -- Officials and employees - Abstract
The editors of the Harvard Law Review respectfully dedicate this issue to Professor Charles J. Ogletree, Jr. OUR STATEMENT ON THE PASSING OF CHARLES OGLETREE Barack Obama (*) & Michelle [...]
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- 2024
38. BAIL AT THE FOUNDING
- Author
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Funk, Kellen R. and Mayson, Sandra G.
- Subjects
Abuse of process -- Laws, regulations and rules ,Exceptions (Law) -- Laws, regulations and rules ,Pretrial detention -- Laws, regulations and rules -- Remedies -- History ,Contemporary philosophy -- Analysis ,Dissenters -- Beliefs, opinions and attitudes ,Common law -- Models ,Bail -- Laws, regulations and rules -- Models -- History ,Government regulation ,Law ,Burr, In re (8 U.S. (4 Cranch) 470 (1807)) - Abstract
INTRODUCTION I. BAIL ON THE BOOKS: PRETRIAL DETENTION AS A CAREFULLY LIMITED EXCEPTION A. Origins of Pretrial Protections B. Bail Procedure in America C. Access to Bail on the Common [...]
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- 2024
39. FIRST AMENDMENT - PLATFORM TRANSPARENCY - U.S. SENATE INTRODUCES MANDATORY REPORTING AND DISCLOSURE LAW FOR SOCIAL MEDIA PLATFORMS. - Platform Accountability and Transparency Act, S. 1876, 118th Cong
- Subjects
Privacy, Right of -- Laws, regulations and rules ,Commercial speech doctrine -- Analysis ,Disclosure of information -- Laws, regulations and rules ,Censorship -- Laws, regulations and rules ,Social media -- Laws, regulations and rules ,Government regulation ,Censorship issue ,Law ,Platform Accountability and Transparency Act of 2022 (Draft) ,United States Constitution (U.S. Const. amend. 1) - Abstract
'Sunlight is said to be the best of disinfectants' (1)--or so the adage goes. At the time, Justice Brandeis's words described a framework for limiting the monopoly power of investment [...]
- Published
- 2024
40. 'HEREINAFTER': WORKPLACE PROTECTIONS, THE STATE ATTORNEY GENERAL'S SETTLEMENT TOOLKIT, AND INJUNCTIVE RELIEF
- Subjects
Attorneys general -- Powers and duties ,Labor contracts -- Laws, regulations and rules -- Remedies ,Injunctions -- Laws, regulations and rules -- Remedies ,Employee rights -- Laws, regulations and rules -- Remedies ,Compromise and settlement -- Laws, regulations and rules -- Remedies ,Government regulation ,Law ,National Labor Relations Act ,Civil Rights Act of 1964 (42 U.S.C. 2000e) ,Fair Labor Standards Act - Abstract
INTRODUCTION The debate over workers' rights rages on. This is not a partisan issue. Scholars have argued that, echoing the 'moment of contract supremacy' known as the Lochner era, coercive [...]
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- 2024
41. IN MEMORIAM: JUSTICE SANDRA DAY O'CONNOR
- Subjects
United States. Supreme Court -- Officials and employees ,Supreme Court justices -- Testimonials ,Law - Abstract
The editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O'Connor. In a bench statement delivered when the Supreme Court convened on December 4, 2023, [...]
- Published
- 2024
42. COLORING IN THE FOURTH AMENDMENT
- Author
-
Harawa, Daniel S.
- Subjects
Searches and seizures -- Laws, regulations and rules -- Demographic aspects ,Conservatism -- Analysis ,Harm principle (Ethics) -- Analysis ,Stereotype (Psychology) -- Laws, regulations and rules ,Dissenting opinions -- Analysis ,Morality -- Laws, regulations and rules ,Probable cause -- Laws, regulations and rules -- Demographic aspects ,Stigma (Social psychology) -- Laws, regulations and rules ,Race discrimination -- Laws, regulations and rules ,College admissions -- Laws, regulations and rules -- Demographic aspects ,Government regulation ,Law ,Plessy v. Ferguson (163 U.S. 537 (1896)) ,Students for Fair Admissions, Inc. v. President of Harvard College (143 S. Ct. 2141 (2023)) ,Parents Involved in Community Schools v. Seattle School District No. 1 (551 U.S. 701 (2007)) ,United States Constitution (U.S. Const. amend. 4) - Abstract
For decades, a question has simmered in criminal procedure: Can the Fourth Amendment seizure analysis account for a suspects race? Scholars have long advocated for courts to consider race when resolving Fourth Amendment questions, but to date, the Supreme Court has not provided a definitive answer. The question has now bubbled to the surface. With calls for advocates to raise race when litigating Fourth Amendment questions, and with more and more advocates heeding those calls, courts are being asked to contemplate how race factors into deciding whether a person has been seized. When the question is explicitly asked, courts have answered differently, with many refusing to consider race as part of the seizure analysis. It is easy to think that it is only a matter of time before the Supreme Court holds that race has no place in the Fourth Amendment, especially given its muscular articulation of colorblindness in the recent affirmative action cases. Indeed, the lower courts that have held that race cannot be considered as part of a seizure analysis have couched their decisions in the same rhetoric and reasoning found in the Supreme Court' colorblind rulings. As this Article explains, when scrutinized, colorblind constitutionalism is an illogical fit for the Fourth Amendment. In fact, the analytical underpinnings of colorblindness are consistent with race being considered as part of the seizure free-to-leave analysis. That race can be relevant to a seizure is reinforced when considered against the broader backdrop of Fourth Amendment law and all of the many ways it implicitly and explicitly recognizes race. This Article therefore clarifies that it is permissible to consider the racial identity of the Fourth Amendment's 'reasonable person.' But the insights of this Article extend beyond the Fourth Amendment, because at bottom, it is a warning against 'case law creep'--where case law is imported from one context to another to advance a specific ideological mission without interrogating whether the case law supports the cause in that context. It is a reminder that the law should not be an unyielding wrecking ball that swings from jurisprudence to jurisprudence, smashing any hope of progress. Thus, ultimately, this Article seeds hope that the law can catch up to our pluralistic society and learn to recognize a multitude of experiences., CONTENTS INTRODUCTION I. RACE-ING AND (E)RACE-ING SEIZURES A. The Reasoning of Courts that Do Not Consider Race B. The Reasoning of Courts that Consider Race II. PORTING COLORBLINDNESS TO THE [...]
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- 2024
43. WILL THE REAL SHAREHOLDER PRIMACY PLEASE STAND UP?
- Author
-
Lipton, Ann M.
- Subjects
The Profit Motive: Defending Shareholder Value Maximization (Nonfiction work) -- Bainbridge, Stephen M. ,Books -- Book reviews ,Law - Abstract
THE PROFIT MOTIVE: DEFENDING SHAREHOLDER VALUE MAXIMIZATION. By Stephen M. Bainbridge. Cambridge, U.K.: Cambridge University Press. 2023. Pp. 223. $34.99. INTRODUCTION In 2019, the Business Roundtable (BRT), a fifty-year-old association [...]
- Published
- 2024
44. NON-EXTRATERRITORIALITY
- Author
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Vazquez, Carlos M.
- Subjects
Conflict of laws -- Evaluation ,Full faith and credit (Law) -- Laws, regulations and rules ,Exterritoriality -- Laws, regulations and rules ,Rule of law -- Evaluation ,Presumptions (Law) -- Laws, regulations and rules ,Government regulation ,Law ,Restatement (Third) of Conflict of Laws ,Restatement (Second) of Conflict of Laws ,United States Constitution (U.S. Const. art. 4, s. 1) - Abstract
The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid to the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state's law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law rule; it instructs courts to adjudicate the case under the law of another state. Because one state's choice-of-law rules are not binding on the courts of other states, the provision may be disregarded by such courts, which may apply the statute's substantive provisions to cases beyond the statute's specified scope. On another view, cases beyond the reach of the statute are subject to another law of that state, such as its more general common law rules. A third view agrees with the first view that the enacting state has no law for excluded cases but insists that the provision limiting the law's scope is not a choice-of-law rule. The provision is written as a limit on the law's reach, and this substantive limitation must be respected by all courts. The statute may not be applied to cases beyond its specified scope. Each of the competing understandings of non-extraterritoriality has prominent judicial and scholarly defenders, and each finds support in successive iterations of the Restatement of Conflict of Laws. This Article considers the judicial and scholarly support for each of the three positions and defends the view that external scope limitations are choice-of-law rules. Limitations on external scope ordinarily reflect the lawmaker's deference to the legislative authority of other states. They do not reflect a legislative preference that a statute's substantive provisions not be applied to cases beyond its specified scope. If the legislature did intend to establish a different rule for cases involving out-of-state persons or events, the provision limiting the statute's scope would in most cases be unconstitutional. In function and intended effect, a statutory provision limiting a statute's external scope is a choice-of-law rule and, as such, may be disregarded by the courts of other states. But this position poses a conundrum: If a state has no law for cases beyond a statute's territorial scope, do courts violate their duty to decide cases according to law when they apply the statute to a set of facts that the statute does not purport to reach? Resolving this puzzle yields valuable insights into the nature of choice-of-law rules and the choice-of-law enterprise., CONTENTS INTRODUCTION I. EXTERNAL SCOPE LIMITATIONS IN THE SECOND AND THIRD RESTATEMENTS A. Renvoi 1. The Second Restatement and the One-Sided Conflicts Theory 2. The Draft Third Restatement and the [...]
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- 2024
45. UNMASKING THE BOSTON POLICE DEPARTMENT'S GANG DATABASE: HOW AN ARBITRARY SYSTEM CRIMINALIZES INNOCENT CONDUCT
- Subjects
Boston, Massachusetts. Police Department -- Standards -- Innovations ,Privacy, Right of -- Laws, regulations and rules ,Databases -- Laws, regulations and rules ,Informers -- Laws, regulations and rules ,Gang members -- Laws, regulations and rules -- Demographic aspects ,Race discrimination -- Laws, regulations and rules ,Government regulation ,CD-ROM catalog ,Database ,CD-ROM database ,Law ,Ortiz v. Garland (23 F.4th 1 (1st Cir. 2022)) ,United States Constitution (U.S. Const. amend. 1) (U.S. Const. amend. 14) - Abstract
A teenager in East Boston walks to school wearing a blue windbreaker --a gift from his mother--and a Chicago Bulls hat. Along the way, he crosses paths with a friend [...]
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- 2024
46. DRAG QUEENS, THE FIRST AMENDMENT, AND EXPRESSIVE HARMS
- Subjects
Drag queens -- Laws, regulations and rules ,Harm principle (Ethics) -- Laws, regulations and rules ,Freedom of expression -- Laws, regulations and rules -- Demographic aspects ,Government regulation ,Law ,United States Constitution (U.S. Const. amend. 1) - Abstract
Introduction When this Note speaks of drag, it will speak of joy. It will speak of brunch servers, (1) preschool teachers, (2) construction workers, (3) opera singers, (4) academics, and [...]
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- 2024
47. 'A LAW UNTO HIMSELF': FREE EXERCISE, (UN)EQUAL VALUE, AND THE FUTURE OF PUBLIC ACCOMMODATIONS
- Subjects
Discrimination in public accommodations -- Laws, regulations and rules -- Demographic aspects ,Freedom of religion -- Laws, regulations and rules ,Government regulation ,Law ,Yeshiva University v. Yu Pride All. (143 S. Ct. 1, 213 L. Ed. 2d 1154 (2022)) ,United States Constitution (U.S. Const. amend. 1) - Abstract
INTRODUCTION Addressing the nation in 1963, President Kennedy declared that 'the right to be served in facilities which are open to the public ... [is] an elementary right.' (2) Over [...]
- Published
- 2024
48. LAW WITHOUT VIOLENCE: HUMAN RIGHTS ADJUDICATION AS WORLD BUILDING
- Subjects
Law enforcement -- International aspects ,Human rights -- Laws, regulations and rules ,Violence -- Usage -- Beliefs, opinions and attitudes ,Government regulation ,Law ,Ukraine v. Russia I.C.J. Mar. 16, 2022 - Abstract
In Violence and the Word, Professor Robert Cover describes law as 'tak[ing] place in a field of pain and death.' (1) International law and human rights adjudication, in particular, could [...]
- Published
- 2024
49. CONTRACT-WRAPPED PROPERTY
- Author
-
D'Onfro, Danielle
- Subjects
Equity (Law) -- Laws, regulations and rules ,Exceptions (Law) -- Laws, regulations and rules ,Easements -- Contracts -- Laws, regulations and rules ,Dignity -- Analysis ,Autonomy (Philosophy) -- Analysis ,Animal rescue -- Contracts -- Laws, regulations and rules ,Animal breeding -- Contracts -- Laws, regulations and rules ,Chattel mortgages -- Laws, regulations and rules -- Contracts ,Copyright law -- Interpretation and construction ,Government regulation ,Contract agreement ,Product licensing ,Law ,Dye v. Tamko Building Products (908 F.3d 675 (11th Cir. 2018)) ,Juarez v. Ward (304 Cal. Rptr. 3d 8ii (Ct. App. 2023)) - Abstract
For nearly two centuries, the law has allowed servitudes that 'run with' real property while with few exceptions refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners--but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. Courts' interpretations of copyright law enabled these developments in the context of software licensing, but these licenses have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions of contract doctrine, such as whether opening shrinkwrap constitutes assent to be bound. Property concepts never enter their analysis. The result of this oversight is that courts have de facto recognized equitable servitudes on chattels--a category that the common law has long rejected except in extraordinary circumstances. Yet because courts are often unfamiliar with property law principles, and because lawyers have failed to make property-based arguments, individual contracts cases are remodeling the architecture of property rights without anyone realizing it. This Article identifies the unexpected emergence of servitudes on chattels via contract law. It explores the consequences of that development and argues that we should see it as deeply troubling. By unwittingly establishing equitable servitudes on chattels, this change in law threatens to undo longstanding precedent, disrupt settled expectations, and effectively recognize a new form of property. More generally, elevating contract over other private law doctrines disrupts the private law's equilibrium in which a complementary suite of doctrines developed to promote economic liberty while curtailing opportunistic impulses. While the pathologies that have flourished internally in modern contract doctrine have been well studied by scholars, the way in which contract law is threatening to consume property and other areas of private law has received less attention. Using servitudes on personal property as a window into the larger problem of contract-dominated private law, this Article explores the private law's role in shaping environmental conservation, autonomy, innovation, and the legitimacy of the law itself. Those values are all in jeopardy if contract law is allowed to encroach on property and to erode the very concept of ownership., CONTENTS INTRODUCTION I. THE PUZZLE OF EQUITABLE SERVITUDES ON CHATTELS A. Basic Servitudes on Chattels B. Equitable Servitudes Before Software C. The Software Wrinkle II. IMPERIAL CONTRACT DOCTRINE A. The [...]
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- 2024
50. FEDERAL QUESTIONS AND THE PROBATE EXCEPTION
- Subjects
Judicial power -- Laws, regulations and rules ,Decedents' estates -- Management -- Laws, regulations and rules ,Ecclesiastical law -- Evaluation ,Exceptions (Law) -- Laws, regulations and rules ,Subject matter jurisdiction -- Laws, regulations and rules ,Acquiescence (Law) -- Laws, regulations and rules ,Federal jurisdiction -- Laws, regulations and rules ,Probate law -- Evaluation ,Diversity jurisdiction -- Laws, regulations and rules ,Government regulation ,Company business management ,Law ,Markham v. Allen (326 U.S. 490 (1946)) ,Marshall v. Marshall (547 U.S. 293 (2006)) ,Judiciary Act of 1789 ,Racketeer Influenced and Corrupt Organizations Act ,United States Constitution (U.S. Const. art. 3) - Abstract
From time to time, contests over decedents' estates arrive in the federal courts. One such case began when a hotel magnate, dividing his empire among the children of his first [...]
- Published
- 2024
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