• Establishing a Global Quarantine Against Weapons of Mass Destruction

      Smith, Derek (2005-02-02)
      The proliferation of weapons of mass destruction (WMD) is on the brink of developing into an epidemic, with the potential to spread to over a dozen nuclear-capable states. This article concludes that given the limitations of traditional arms controls frameworks, a global prohibition against WMD transfer may be the last viable line of defense. It discusses why this strategy is justified under the doctrine of self-defense, as well as how it can be implemented to create both a normative foundation and an appropriate institutional framework.
    • Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform

      Higonnet, Ethel (2005-03-01)
      This paper explores the successes and failure of existing hybrids, evaluates the structural and theoretical advantages and disadvantages of the hybrid model, and outlines the flaws of international ad hocs that hybrids can remedy. In theory at least, hybrids can draw upon the strengths of international justice and the benefits of local prosecutions. However, in order to live up to their full potential, hybrids must be restructured to place more value in local expertise, connect better with local populations, and help rebuild local judicial systems If they are embedded into local justice systems, and their mandates are broadened to focus on local justice reform/rebuilding, hybrids have the potential to anchor justice mechanisms into local culture, genuinely altering cycles of impunity by changing local judicial institutions in a sustainable way. The hybrid model can thus move beyond retributive justice and foster a culture of accountability.
    • The Case for the Legislative Override

      Stephanopoulos, Nicholas (2005-03-06)
      Abstract: What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and which are not.
    • From St. Ives to Cyberspace: The Modern Distortion of the Medieval 'Law Merchant'

      Sachs, Stephen (2005-03-17)
      Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant." This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a law of their own creation. The standard history has been accepted by legal scholars across the ideological spectrum, by economists and political scientists, and by those drafting new regimes to govern Internet commerce. This Article argues that the traditional view is deeply flawed. Returning to the original sources--especially the court rolls of the fair of St. Ives, the most extensive surviving records of the period--it demonstrates that merchants in medieval England were substantially subject to local control. Commercial customs and substantive laws varied significantly across towns and fairs, and did not constitute a coherent legal order. The traditional interpretation has been retained, not for its accuracy, but for ideological reasons and for its long and self-reinforcing pedigree. This Article takes no position on the merits of shielding multinational actors from domestic law; it merely denies that the Middle Ages provide a model for such policies.
    • Development Theory and Foundations of Universal Access Policies

      Pereira Neto, Caio (2005-08-01)
      This article discusses the justifications to implement public policies towards widespread access to information and communications technologies (ICTs) in the context of developing countries. It argues that the so-called universal access policies can be seen as important pieces of broader development strategies. In this sense, there is a strong case for governments of developing countries to foster access to ICTs. The work is structured in three parts. Part I examines the theoretical arguments and empirical evidence supporting the positive impact of access to ICTs on economic growth. Part II discusses the impact of access to ICTs on the improvement of human functionings and expansion of human capabilities. Finally, Part III addresses the impact of universal access policies on the reduction of inequality, relating this effect to sustainable development. A brief conclusion ties the three parts together.
    • PUBLIC FINANCE AND THE FORTUNES OF THE EARLY AMERICAN LOTTERY

      Dasgupta, Anisha (2005-08-01)
      This Article connects the rise and fall of the early American lottery with changes in the laws governing incorporation and public borrowing. Part II of the Article describes the legal obstacles that hindered private and public actors from carrying out internal improvements in order to illustrate why lotteries were an appealing funding device. Part III uses case study analysis of six eighteenth century lotteries to explore why lotteries were initiated and why they failed to achieve their promise as a funding device. Part IV makes the link between the uses of the lottery as an instrument of government and the fortunes of the lottery in American public life. As I will argue, public finance imperatives did much to cause the historical rise and fall of the lottery, as well as its resurgence in the modern day.
    • Procedural Cross-Unit Bargaining: An Argument in Support of Greater Union Solidarity in Labor Negotiations

      Estell, Michael (2005-08-01)
      The recognized and prospective unions of workers at Yale University have for many years been joined in an alliance that presents a fairly typical example of cross-unit solidarity. This alliance, now known as the Federation of Hospital and University Employees, is comprised of Local 35, representing Yale’s service and maintenance workers; Local 34, representing Yale’s clerical and technical workers; the Graduate Employees and Students Organization (GESO), which seeks recognition as the bargaining unit for Yale’s graduate student teachers; and a group of workers at Yale New-Haven Hospital who seek union recognition.
    • Energy Efficiency in "Deregulated" Markets

      rotenberg, edan (2005-09-28)
      “Deregulation” has changed the market for electricity, but it is still a market with problems from an environmental and an economic point of view. Effective energy policy must provide incentives to the actors best suited to overcome market failures in the new regulatory environment, and must be developed in a way that harmonizes energy efficiency policy with new environmental policies (particularly the development of emissions trading markets and renewable portfolio standards). "Deregulation" does not signal the end of regulation in the electricity sector but instead represents a new regulatory regime. The core regulatory concern in a regulated or deregulated market should be correcting distortions in the price of electricity caused by poor regulation, unavoidable structural flaws in the market, or externalities, as well as accommodating the difference between actual social response to price signals and the predictions of economic theories that assume perfectly rational behaviour. In practice, deregulation means that regulators move from being the key coordinator of other actors to playing a more secondary role. Further, a new concern arises in a deregulated market - avoiding the structural problem of highly inelastic (short term) demand and supply, leading to the ability of suppliers to game the market by withholding power. Retail price reforms seek primarily to tackle this problem, hence deregulation coincides with a move to Real Time Pricing (RTP). RTP and similar price signals are likely to lead to increased efficiency of electricity use, but not to socially optimal demand for electricity. There will still be space for end use energy efficiency measures, whether these take the form of market based environmental mechanisms (like pollution taxes), information provision, or more traditional DSM options.
    • Successful Challenge, Ruling Reversed: Why the OCR Survey Proposal May be Well-Intentioned But Misguided

      Preussel, Robin (2005-11-01)
      The paper details the history and development of Title IX and its implementing regulations as applied to intercollegiate athletics, highlighting the inequities that have often resulted from its interpretation and application to college programs. It then analyzes the recent Office of Civil Rights’ (the division of the Department of Education that interprets and implements Title IX’s regulatory structure and oversees collegiate adherence to Title IX) proposal to allow institutions to use electronic surveys to comply with prong three of the (in)famous Three Prong Test. The paper concludes that the survey scheme is a good step forward in correcting inequities while preserving opportunities for women, but underlines some weaknesses in the OCR’s proposal and suggests some ways to correct these shortcomings. Ultimately, the paper concludes that schools should be allowed to measure genuine interest in athletic participation among both male and female undergraduates and develop appropriate programs to meet these needs without adhering to the strictures of proportionality so prevalent in institutions today.
    • Gay Self-Identification and the Right to Political Legibility

      Hanna, Fadi (2005-11-02)
      Over twenty years after the Sixth Circuit held that a bisexual public employee could be dismissed for coming out, courts remain split on the question of constitutional protection for gay coming-out speech. In addressing that question, this Article begins with a more fundamental one: What is the legal harm of suppressing coming-out speech? This Article suggests that a distinct legal harm follows from whether one conceives of coming-out as “persuasive,” “creative,” or “descriptive” speech—establishing a framework that applies to all minorities whose status is not readily apparent. Arguing that courts and scholars have adopted persuasive and creative conceptions of the value of coming-out, respectively, this Article advocates a descriptive conception: That coming-out is legally significant because it functions, in the context of the political process, as identity-reporting, allowing homosexuals to become “politically legible.”
    • “for the murder of his own female slave, a woman named Mira...” : Law, Slavery and Incoherence in Antebellum North Carolina

      Baker, Anthony (2006-03-01)
      “for the murder of his own female slave, a woman named Mira...” : Law, Slavery and Incoherence in Antebellum North Carolina __________________________________________________________ “The death of culture begins when its normative institutions fail to communicate ideals in ways that remain inwardly compelling...” Phillip Rieff In the spring of 1839 a ‘slave owner,’ ­ Mr. John Hoover ­ was arrested for the brutal murder of his own ‘property,’ a young woman named Mira. Convicted of the capital charge by a jury of his peers ­ 12 fellow ‘slave owners,’ as the relevant law then required ­ his appeal to the North Carolina Supreme Court was rejected in the most categorical of terms, and he was hanged for the offense, the following spring. Far from defining a ‘just’ outcome, I examine the case as a legal historical artifact, setting it in the context of the remarkable attending legal culture of its day, recovering it i! nstead as evidence of the beginning steps in the death of antebellum culture in North Carolina. Conceived as a ‘legal history/law in society’ piece, in it I consider law as a discrete force in cultural development and nation building, spiritual in its essence and dynamic in its out-workings, for good or ill, depending upon the critical choices made. Considering both the foundational nature of jurisprudence and the essential power of law, I seek in the piece to remind the reader of its fundamental place in the life of any nation, and, therefore, the vital importance of ‘choosing well.’
    • Competition, Consumer Welfare, and the Social Cost of Monopoly

      Lee, Yoon-Ho (2006-03-16)
      Conventional deadweight loss measures of the social cost of monopoly ignore, among other things, the social cost of inducing competition and thus cannot accurately capture the loss in social welfare. In this Article, we suggest an alternative method of measuring the social cost of monopoly. Using elements of general equilibrium theory, we propose a social cost metric where the benchmark is the Pareto optimal state of the economy that uses the least amount of resources, consistent with consumers’ utility levels in the monopolized state. Since the primary goal of antitrust policy is the enhancement of consumer welfare, the proper benchmark is Pareto optimality, not simply competitive markets. We discuss the implications of our approach for antitrust law as well as how our methodology can be used in practice for allegations of monopoly power given a history of price-demand observations.
    • The Rise and Fall of the Centrality Concern in Free Exercise Jurisprudence

      Young, Sean (2006-05-01)
      In 1990, Smith changed the landscape of free exercise jurisprudence and introduced what this Article describes as the “centrality concern”: the principle that judges are in no place to determine the centrality of various activities to a particular religion. However, no legal scholar has recognized the extent to which the centrality concern has been undermined. This Article explains how Lukumi, Locke and most Circuits have undermined the centrality concern. Implications of this doctrinal anomaly will be illustrated with the example of the less often discussed religion of conservative Christianity, and the Article concludes with some brief recommendations.
    • “Mismatched” Objectives: Evaluating the Affirmative Action Debate

      McDaniel, Geneva (2006-05-12)
      Legal evaluation of affirmative action is structured as a two part analysis of means and ends. However, both legal and empirical analyses suggest that presently the end for which certain means are employed has not been clearly articulated. The failure to identify an objective frustrates the public’s ability to evaluate, and the administrator’s ability to narrowly tailor, existing programs. When elected officials and the public are being asked to choose between color blind and race conscious programs, it is problematic that we lack the tools necessary for thorough assessment. With the DOJ and Center for Equal Opportunity’s recent attacks on existing programs, which focus on the failure to narrowly tailor, the impediment to design is also troubling.
    • Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal

      Yi, Daniel (2006-05-12)
      The history of transnational adjudication is littered with failure and disappointment. War crimes tribunals have often become farces, the ICC has exacerbated armed conflicts, and even the venerable ICJ has endured humiliating failures. This piece makes a compelling case for why one international tribunal, the Court of Arbitration for Sport (“CAS”), has managed to flourish in the otherwise depressing landscape of transnational adjudication. Specifically, the article makes a novel argument for 1) why parties are drawn to the CAS, and 2) how the CAS’ speech acts manage to have force.
    • Questioning the Fundamental Right to Marry

      Pull, Joseph (2006-05-25)
      The Supreme Court has adopted the doctrine of a constitutional “fundamental right to marry,” and has construed this doctrine to mean a fundamental right to state-recognized legal-marriage. However, the doctrine has several problems: (a) the Court never satisfactorily explains why marriage is a fundamental right; (b) the Court never defines the boundaries of marriage as a fundamental right; and (c) the Court has occasionally treated marriage as if it were not a fundamental right. Further, the idea of a “fundamental right to marry” contains a debilitating internal contradiction: the notion of a fundamental right implies firm privileges which the state cannot deny, define, or disrespect, but marriage boundaries (the legal rules establishing who is eligible to marry whom, what formalities are required for marriage, and the legal ramifications of marriage) in the United States have always been subject to almost plenary state control which denies some marriages and refuses to give legal effect to others. What can a “right to marry” protecting individuals against the state possibly mean when the state itself determines what this thing called “marriage” is? Two observations about marriage suggest the answer to this question. First, the word “marriage” carries several different meanings which are related to each other but conceptually distinct. The “fundamental right to marry” conundrum arises in part from the conflation of these various meanings. Second, the history of western marriage regulation—particularly the contemporary rejection of the traditional beliefs about sexuality and marriage that once provided principled boundaries for a right to marry—explains why the various meanings of marriage often are conflated today, and it suggests how the law can escape the “fundamental right to marry” conundrum. The Supreme Court should reinterpret the fundamental right to marry as referring to the practice of personal-marriage behaviors (cohabitation, economic partnership, joint decision-making, etc.) rather than state-recognized legal-marriage. This would preserve the entrenched idea of a fundamental right to marry while cohering wit! h the negative liberty nature of the Court’s other recognized fundamental rights and accommodating the reality that the Constitution does not (currently) textually define or even mention marriage in any way.
    • Theories of Asbestos Litigation Costs ­ Why Two Decades of Procedural Reform Have Failed to Reduce Claimants’ Expenses

      Davidson, Jeffrey (2006-05-26)
      In twenty years of asbestos litigation, procedural reforms at all levels of the civil litigation system have failed to reduce plaintiffs’ attorneys’ fees. The result has been dramatic undercompensation of asbestos tort victims. This paper attempts to explain this remarkable fact using economic methodology. The paper offers three theories: First, that the continuing difficulty of assessing causation in asbestos and other mass tort cases predictably impedes the efforts of procedural reform to reduce costs; second, that changes in defendant and insurer risk attitudes have generated costly litigation; third, that collusion of plaintiffs’ attorneys to maintain prices cannot be ruled out. Each of these theories has some empirical support. Further, regardless of which turns out to be correct, the continuing high costs of civil litigation mean that resolution through the bankruptcy system will predictably harm future claimants, an unfair outcome. In the final assessment, civil procedure reform, the favored mechanism for resolving the asbestos case backlog, cannot achieve its objectives. Rather, reform must take into account substantive law and the motives and incentives of actors in the legal system. Holistic analysis of this type lends support to a comprehensive administrative remedies scheme, which has the best chance of decreasing the costs of compensation.
    • The Experts Aren't Reliable Either: Why Expert Testimony on the Reliability of Eyewitness Testimony is Unwarranted in Alabama State Courts

      Preussel, Robin (2006-08-01)
      The article first summarizes the possible sources of error found in eyewitness testimony according to psychological and cognitive science research. The paper then explores the admissibility of this expert testimony under the existing rules of evidence according to both federal law and Alabama state law, as well as court commentary on its admissibility, and concludes the liberal admission of such testimony is not warranted in the case of Alabama. Taking into consideration the policies which constitute the state's provision of legal services to indigent defendants, five arguments counsel against the admission of expert testimony, including: the trial court's discretion in admitting such evidence; the evidence's limited utility; the evidence can be more prejudicial than probative in a jury trial setting; there is considerable disagreement within the scientific community about the accuracy and value of such evidence; and efficacious safeguards already exist or more effective safeguards should take priority over the admission of such evidence. The paper concludes that Alabama's criminal justice system and Alabama defendants would be better served by implementing a presumption against the admissibility of expert testimony on the reliability of eyewitness evidence. This presumption coupled with a bright line test for when the evidence should be admitted in certain cases would allow the state to concentrate on improving its provision of legal entitlements to all indigent defendants.
    • Lost Opportunity: Bush v. Holmes and the Application of State Constitutional Uniformity Clauses to School Voucher Programs

      Dycus, Jamie (2006-08-02)
      This article analyzes the Florida Supreme Court’s recent decision in Bush v. Holmes, in which the court struck down Florida’s school voucher program as a violation of Florida's constitutional uniformity clause. It argues that the court erred by applying a simplistic and ahistorical definition of uniformity, and recommends that future courts applying state constitutional uniformity clauses to school voucher schemes take a different approach. Specifically, it argues that courts in future cases should begin by acknowledging frankly the necessity of determining the meaning of uniformity. Next, drawing on case law and historical evidence, they should fashion definitions of uniformity that accurately reflect the purposes for which their states’ uniformity clauses were adopted. Finally, in applying these definitions, they should take account of relevant empirical data. This article does not generalize about the outcomes courts in other states might reach, if they followed this approach. Nor does it express a normative judgment about what outcome state courts should reach, as a general matter, when applying uniformity clauses to school choice programs. But it contends that the approach described here will produce outcomes more solidly grounded in historical, doctrinal, and empirical reality than the outcome reached by the Florida Supreme Court in Holmes.
    • Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws

      Wei, Marlynn (2006-08-08)
      This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians’ reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients’ families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians’ disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms—norms that will remain outside the scope of law’s influence. The article also considers other legal and policy changes that could help to encourage disclosure.