Open Access. Powered by Scholars. Published by Universities.®

Public Law and Legal Theory Commons

Open Access. Powered by Scholars. Published by Universities.®

2000

Discipline
Institution
Keyword
Publication
Publication Type
File Type

Articles 1 - 30 of 59

Full-Text Articles in Public Law and Legal Theory

Why Pragmatism Works For Me, Catharine P. Wells Nov 2000

Why Pragmatism Works For Me, Catharine P. Wells

Boston College Law School Faculty Papers

In this Article the author explores the growth of her interest in pragmatic legal theory. Pragmatism is often portrayed as a kind of black hole in the philosophical universe. It is defined not by the weight of its theories but instead by the counterweight of its anti-theoretical teachings. Whatever the reason, pragmatism’s lack of adherents has resulted in a number of misconceptions about its limitations. Among them are: (1) Pragmatism is banal in the sense that it only tells us to continue with our common sense practices (2) Pragmatism is relativistic in that it reduces everything to viewpoint and ...


Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Ann Chirba-Martin, E. Donald Elliott, Cynthia R. Farina, Ernest Gellhorn, John D. Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald M. Levin, Lars Noah, Katherine Rhyne, Jonathan Baert Weiner Oct 2000

Regulatory Improvement Legislation: Risk Assessment, Cost-Benefit Analysis, And Judicial Review, Fred Anderson, Mary Ann Chirba-Martin, E. Donald Elliott, Cynthia R. Farina, Ernest Gellhorn, John D. Graham, C. Boyden Gray, Jeffrey Holmstead, Ronald M. Levin, Lars Noah, Katherine Rhyne, Jonathan Baert Weiner

Cornell Law Faculty Publications

As the number, cost, and complexity of federal regulations have grown over the past twenty years, there has been growing interest in the use of analytic tools such as risk assessment and cost-benefit analysis to improve the regulatory process. The application of these tools to public health, safety, and environmental problems has become commonplace in the peer-reviewed scientific and medical literatures. Recent studies prepared by Resources for the Future, the American Enterprise Institute, the Brookings Institution, and the Harvard Center for Risk Analysis have demonstrated how formal analyses can and often do help government agencies achieve more protection against hazards ...


Faith, Hope, And Rationality Or Public Choice And The Perils Of Occam's Razor, Cynthia R. Farina Oct 2000

Faith, Hope, And Rationality Or Public Choice And The Perils Of Occam's Razor, Cynthia R. Farina

Cornell Law Faculty Publications


The Reading Wars: Understanding The Debate Over How Best To Teach Children To Read, Kenneth Anderson Jun 2000

The Reading Wars: Understanding The Debate Over How Best To Teach Children To Read, Kenneth Anderson

Kenneth Anderson

This 2000 review essay from the Los Angeles Times Book Review examines the perennial debate over teaching reading to children - phonics or whole language.


Racial Profiling: The Criterion Of Disproportionate Numbers, Editor Jun 2000

Racial Profiling: The Criterion Of Disproportionate Numbers, Editor

International Bulletin of Political Psychology

This article critiques a common criterion employed to identify examples of racial profiling in law enforcement.


Reclaiming The Labor Movement Through Union Dues? A Postmodern Perspective In The Mirror Of Public Choice Theory, Harry G. Hutchison Jun 2000

Reclaiming The Labor Movement Through Union Dues? A Postmodern Perspective In The Mirror Of Public Choice Theory, Harry G. Hutchison

University of Michigan Journal of Law Reform

The National Labor Relations Board's (NLRB) seeming powerlessness to process dues objector cases has led to a proliferation of state sponsored "paycheck protection" laws and popular referenda devised to ensure that workers will not be obliged to pay dues for non-germane purposes. Recently, California captured national attention as the site of a richly contested paycheck protection referendum. Such proposals have electrified union advocates and have enlivened the debate over the proper use of union dues. In addition, recent attempts to reform campaign finance have run aground on the thorny issue of union political contributions (both in-kind and in cash ...


Expanding Directions, Exploding Parameters: Culture And Nation In Latcrit Coalitional Imagination, Elizabeth M. Iglesias, Francisco Valdes Apr 2000

Expanding Directions, Exploding Parameters: Culture And Nation In Latcrit Coalitional Imagination, Elizabeth M. Iglesias, Francisco Valdes

University of Michigan Journal of Law Reform

The articles and commentaries in this Symposium are excellent points of departure for reflecting upon the advances thus far achieved in the evolution of this still very young community of scholars. The articles and commentaries that follow this brief Introduction comprise the second "free-standing" law review Symposium on LatCrit theory organized specifically in response to student interests and initiatives. The timing is fitting, for this Symposium also coincides with the fifth anniversary of LatCrit theory's emergence in the American legal academy. Since then, five annual conferences and four additional colloquia have produced, in total, nine published symposia in both ...


Culture, Nationhood, And The Human Rights Ideal, Berta Esperanza Hernández-Truyol, Sharon Elizabeth Rush Apr 2000

Culture, Nationhood, And The Human Rights Ideal, Berta Esperanza Hernández-Truyol, Sharon Elizabeth Rush

University of Michigan Journal of Law Reform

This Symposium on nation and culture illustrates these LatCrit goals and advances them. The two main works and the commentaries on them are rich explorations and representations of the voices and concerns of LatCrit theory. This Foreword engages all the works by focusing on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a progressive methodology to analyze and detect the exclusion or silencing of myriad voices. This Part develops a LatCritical Human Rights paradigm ...


Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii Apr 2000

Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii

Faculty Publications

To understand Fear of Judging and the debate over the Federal Sentencing Guidelines requires some familiarity with the sentencing reform movement that led to the adoption of the Federal Sentencing Guidelines in 1987, as well as at least a rudimentary grasp of the structure of the Guidelines themselves. For those readers who require an introduction to both subjects, the next section of this Article attempts to provide one. Those already familiar with the Guidelines and their history can skip to Section III, where the discussion of Fear of Judging begins in earnest.


A Different Kind Of Sameness: Beyond Formal Equality And Antisubordination Principles In Gay Legal Theory And Constitutional Doctrine, Nancy Levit Jan 2000

A Different Kind Of Sameness: Beyond Formal Equality And Antisubordination Principles In Gay Legal Theory And Constitutional Doctrine, Nancy Levit

Nancy Levit

Gay legal theory is at a crossroads reminiscent of the sameness/difference debate in feminist circles and the integrationist debate in critical race theory. Formal equality theorists take the heterosexual model as the norm and then seek to show that gays, lesbians, bisexuals, and transsexuals - except for their choice of partners - are just like heterosexuals. Antisubordination theorists attack the heterosexual model itself and seek to show that a society that insists on such a model is unjust. Neither of these strategies is wholly satisfactory. The formal equality model will fail to bring about fundamental reforms as long as sexual minorities ...


Putting Hate In Its Place: The Codification Of Bias Crime Statutes In A Modern Penal Code, Anthony M. Dillof Jan 2000

Putting Hate In Its Place: The Codification Of Bias Crime Statutes In A Modern Penal Code, Anthony M. Dillof

Law Faculty Research Publications

No abstract provided.


Intervention In Public Law Litigation: The Environmental Paradigm, Peter A. Appel Jan 2000

Intervention In Public Law Litigation: The Environmental Paradigm, Peter A. Appel

Washington University Law Review

This Article consists of four parts. Part I explores the theoretical development of public law litigation, with a particular focus on the overlooked role that environmental litigation and its peculiarities should play in this thinking. Part II examines the history and development of intervention as a procedural device, and then outlines how it presently functions in public law cases. Part III then examines the interrelated claims that federal courts generally have been too stingy with potential intervenors and that an increased role for intervenors necessarily benefits public law litigation. The best case that supporters of a broader right of intervention ...


A Reply To Professor Tobias, Peter A. Appel Jan 2000

A Reply To Professor Tobias, Peter A. Appel

Washington University Law Review

Professor Tobias finds four primary faults with my account. First, he believes that I rely too heavily on impressionistic and anecdotal data in formulating my conclusions, although he recognizes that all analyses of intervention— his own included— suffer from the same fault. Second, he argues that my article and other considerations of this area would benefit from “a more refined understanding of modern environmental litigation.” Third, Professor Tobias expresses doubt about the wisdom of my prescriptions for improving intervention, particularly with my argument that courts of appeals should review intervention denials under an abuse of discretion standard rather than de ...


Rethinking Intervention In Environmental Litigation, Carl Tobias Jan 2000

Rethinking Intervention In Environmental Litigation, Carl Tobias

Washington University Law Review

Intervention in Public Law Litigation: The Environmental Paradigm (Environmental Paradigm) substantially enhances understanding of intervention in federal environmental disputes. These controversies are a critical type of modern civil lawsuit and perhaps constitute the quintessential form of public law litigation. Professor Peter Appel comprehensively reviews the lengthy history of the intervention mechanism, scrutinizes the substantial 1966 revision of Federal Rule of Civil Procedure 24, and closely examines the phenomenon of public law litigation and intervention in it. Professor Appel, thus, significantly advances the dialogue about public law cases and intervention in them and much that he states is undisputed. Nevertheless, certain ...


Localism And Regionalism, Richard Briffault Jan 2000

Localism And Regionalism, Richard Briffault

Buffalo Law Review

No abstract provided.


Against Centralization, Gerald E. Frug Jan 2000

Against Centralization, Gerald E. Frug

Buffalo Law Review

No abstract provided.


On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring Jan 2000

On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring

Michigan Journal of International Law

This paper outlines a recent procedural innovation in the tax area, the Advance Pricing Agreement Program ("APA" program), and evaluates its success. Such a case study can play a significant role in linking procedural innovation to the broader issues of administrative law theory and regulatory reform. For example, a working model such as the APA program, built on flexibility and creativity, may support administrative theories advocating discretion, flexibility, and experimentation. Conversely, some interest group theories of regulation (e.g., public choice theory), can prompt critical examination of reforms like APAs that exhibit limited openness to scrutiny. The APA program is ...


Globalization And The Design Of International Institutions, Cary Coglianese Jan 2000

Globalization And The Design Of International Institutions, Cary Coglianese

Faculty Scholarship at Penn Law

In an increasingly globalized world, international rules and organizations have grown ever more crucial to the resolution of major economic and social concerns. How can leaders design international institutions that will effectively solve global regulatory problems? This paper confronts this question by presenting three major types of global problems, distinguishing six main categories of institutional forms that can be used to address these problems, and showing how the effectiveness of international institutions depends on achieving “form-problem” fit. Complicating that fit will be the tendency of nation states to prefer institutional forms that do little to constrain their sovereignty. Yet the ...


Linking The Visions, Donald J. Herzog Jan 2000

Linking The Visions, Donald J. Herzog

Other Publications

Professor Donald Herzog talks about his teaching and work.


Private Order And Public Institutions, Ellen D. Katz Jan 2000

Private Order And Public Institutions, Ellen D. Katz

Reviews

In Private Order Under Dysfunctional Public Order, John McMilan and Christopher Woodruff describe the private institutions that order commercial transactions in developing economies where commercial actors view the formal legal regime as unreliable. Presenting evidence from surveys of market participants in several Eastern European countries and in Vietnam, McMillan and Woodruff depict a system of private order that requires formal organization and the creation of institutions to share information and coordinate multiparty responses. These institutions do not simply offer a viable alternative to public procedures, but also enable commercial transactions to occur where the vacuum in public order would otherwise ...


Raising Arizona: Reflections On Sovereignty And The Nature Of The Plaintiff In Federal Suits Against States, Catherine T. Struve Jan 2000

Raising Arizona: Reflections On Sovereignty And The Nature Of The Plaintiff In Federal Suits Against States, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


The Moral Metaphysics Of Causation And Results, Stephen J. Morse Jan 2000

The Moral Metaphysics Of Causation And Results, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.


The Nature And Function Of Criminal Theory, George P. Fletcher Jan 2000

The Nature And Function Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the ...


After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt Jan 2000

After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt

Faculty Scholarship

The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects ...


Phoebe's Lament (Symposium: Empirical Research In Commercial Transactions), James J. White Jan 2000

Phoebe's Lament (Symposium: Empirical Research In Commercial Transactions), James J. White

Articles

Assume a bright hypothetical social scientist - call her Phoebe - who is completely ignorant of legal research as it is practiced in today's law schools. Phoebe might speculate about legal research as follows. First, she would note that the law schools are joined with and are the exclusive source of the practitioners of a profession. Second, she would note that commercial and legal actors rub up against and are influenced by the law in countless ways every day. Third, she might remark that this interaction occurs practically on the doorsteps of our law schools. Unlike anthropologists, who may have to ...


Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise Jan 2000

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Cornell Law Faculty Publications

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?

Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My ...


A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman Jan 2000

A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman

Articles

Now I know how the Munchkins felt. Here I have been, toiling in the fields of Evidenceland for some years, laboring along with others to show how use of Bayesian probability theory can assist in the analysis and understanding of evidentiary problems.' In doing so, we have had to wage continuous battle against the Bayesioskeptics-the wicked witches who deny much value, even heuristic value, for probability theory in evidentiary analysis.2 Occasionally, I have longed for law-and-economics scholars to help work this field, which should be fertile ground for them.3 So imagine my delight when the virtual personification of ...


Structuring Criminal Codes To Perform Their Function, Paul H. Robinson Jan 2000

Structuring Criminal Codes To Perform Their Function, Paul H. Robinson

Faculty Scholarship at Penn Law

No abstract provided.


Rationality And Responsibility, Stephen J. Morse Jan 2000

Rationality And Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.


The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank Jan 2000

The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.