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Mutual Tolerance and Sensible Exemptions
Get PDFThis chapter focuses on three general themes that bear on the need to understand one another in society and how that understanding bears on appropriate exemptions relating to abortions and same-sex marriage, two questions that continue to divide the American people.
First, there is a need for mutual tolerance toward others who see things differently. Second, a great deal in life is not subject to rational answers. Third, people should generally not be required to do directly what they believe is deeply wrong. However, society can work only if people do not refuse to help those who, they believe, have done something they see as seriously wrong.
Although the moment that life begins is not subject to a rational answer, powerful reasons support both a woman’s right to abortion at the early stages of pregnancy and also the interests of doctors and nurses to not participate in or assist with abortion, as Section II notes. Likewise, as Section III explains, in modern culture, powerful reasons support the right of people to marry someone else of the same gender. Yet, there are some people who believe same-sex marriage is contrary to God’s will, or fundamentally wrong for some other reason. They should not have to be directly involved in the solemnization or celebration of those marriages. However, people should not be able to refuse general services to same-sex couples in the time that follows
2018 IAOHRA Gender Equity Toolkit
Get PDFHuman rights provide a valuable tool for assessing and advancing women’s human rights; proactively identifying and changing the laws, policies, and practices that perpetuate inequality; addressing the stereotypes and beliefs that underlie gender discrimination; and shaping initiatives that improve gender equity
Prison Preparedness and Legal Obligations To Protect Prisoners During Natural Disasters
Get PDFSince at least 2004, the intensity of hurricanes and the damage they have caused in America has increased significantly. After the turbulent hurricane season of 2017, citizens should recognize the elevated risks to safety that occur when individuals stay put, especially during high-intensity hurricanes (Category 3 and higher). States of emergency and evacuation orders have been declared recently in many states and cities that anticipated extreme hurricane conditions. However, even with increased calls for evacuations, warnings from public officials, and around the clock media coverage, a significant portion of the population has continued to be overlooked during times of natural disasters. This neglected group of citizens “left out of sight and out of our hearts” during natural disasters are the incarcerated men and women in correctional facilities across the country
Holding Fossil Fuel Companies Accountable for their Contribution to Climate Change: Where Does the Law Stand?
Get PDFThe judge who called for a climate tutorial in a federal court in San Francisco accepted the science that says that human-caused emissions of carbon dioxide play the central role in rising average global temperatures, increased sea levels, and coastal flooding – but threw out a lawsuit calling for financial reparations from the oil companies for causing these problems. Why? And what might the decision mean for other cases in other states, along similar lines, that are still in the works? Two environmental lawyers, one of whom was in the courtroom for the tutorial, explain
Rethinking Family-Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases
Get PDFLike criminal prosecutors, family-court prosecutors have immense power. Determining which cases to prosecute and which to divert or dismiss goes to the heart of the delinquency system’s balance between punishment and rehabilitation of children and the child protection system’s spectrum of family interventions. For instance, the 1990s shift to prosecute (rather than dismiss or divert) about 10 percent more delinquency cases annually is as significant a development as any other. Yet scholars have not examined the legal structures for these charging decisions or family-court prosecutors’ authority in much depth.
This Article shows how family-court prosecutors’ roles have never been fully theorized. Family courts historically avoided prosecutors (or lawyers of any kind). When children’s and parents’ lawyers appeared in the 1960s to 1970s, family-court prosecutors soon followed, but without any consensus about how they should make charging decisions or how their authority intersects with agencies or intake officers. This Article provides the first detailed description and critique of the varying state laws governing family-court prosecutors.
This Article argues that family-court prosecutors should work for and represent juvenile justice or child protection agencies, which should have authority to determine which cases to file. Agencies are best suited to balance the competing interests at stake in family-court cases and to choose specific cases on which to focus their limited resources. Agency control over intake could reduce delinquency prosecutions for relatively low-level offenses, which have particularly large racial disparities. Finally, an agency model should lead to limited judicial review of decisions to prosecute cases — a long-elusive goal in scholarship regarding criminal prosecutors
Why Comparative International Law Needs International Relations Theory
Get PDFThis chapter challenges the conventional wisdom that international relations theory has nothing to offer scholars interested in comparative international law. It argues that comparativists should not underestimate the value of international relations theory in explaining how and why certain states adopt particular interpretations of international law. While international relations theory cannot explain the evolution of specific doctrines, it can be very useful in understanding the general approaches to international law that states embrace. The chapter develops the connection between domestic institutional design and the interpretation of international law on one side, and realism, institutionalism, and liberalism on the other. It argues that greater consideration of the relationship among power, domestic institutional design, and international relations theory paradigms will not only prove fruitful for the comparative international law project but also for those thinking about the aims of international law and the operation of international politics
Too Big To Supervise: The Rise of Financial Conglomerates and the Decline of Discretionary Oversight in Banking
Get PDFThe authority of government officials to define and eliminate “unsafe and unsound” banking practices is one of the oldest and broadest powers in U.S. banking law. But this authority has been neglected in the recent literature, in part because of a movement in the 1990s to convert many supervisory judgments about “safety and soundness” into bright-line rules. This movement did not entirely do away with discretionary oversight, but it refocused supervisors on compliance, risk management, and governance – in other words, on internal bank processes.
Drawing on the rules versus standards debate, this Article develops a taxonomy for parsing the various approaches to banking law and documents a shift in supervisory policy over the last thirty years. It shows how today’s focus on internal bank processes, a policy called risk-focused supervision (RFS), was the result of a deregulatory agenda that reconceptualized the role of banks in the economy and led to the emergence of large, complex banking organizations (LCBOs). Unlike traditional banks, LCBOs engage in a wide range of nonmonetary financial activities, including market making in derivatives and corporate securities and investing in private equity funds. The policymakers who designed this new system believed that government oversight of LCBOs was costly and unnecessary – if even possible. Therefore, they constructed a new legal framework based on facilitating market discipline through RFS and risk-based capital requirements.
Although most officials today repudiate “market discipline” and the philosophy underlying the pre-crisis legal framework, the pillars of that framework remain intact. Moreover, the future of the Fed’s innovative stress tests – which represent a resurgence in traditional safety and soundness oversight is in doubt. Ultimately, today’s conglomerates, which engage in both monetary and nonmonetary activities, may be, as policymakers in the 1990s first postulated, too big to supervise in the traditional sense. This is a problem because a framework that relies on market oversight or rules alone is unlikely to prevent excessive risk taking and the pro-cyclical expansion of bank balance sheets. It is time, therefore, to reconsider the proper role of banks in the economy and our legal strategies for ensuring a stable and efficient monetary system
\u3cem\u3eChevron\u3c/em\u3e on Stilts: A Response to Jonathan Siegel
Get PDFWhither Chevron? For several years, some justices of the Supreme Court have been questioning Chevron deference, partly on the basis of my constitutional critique of it. It was inevitable that someone would stand up in defense of that doctrine, and I am glad to say that my estimable former colleague Jonathan Siegel has stepped up to the plate. But the defense of the indefensible is not easy.
Although the long-standing conventional critique of Chevron was that it violates the separation of powers and federalism, my criticism is that Chevron deference corrupts the judicial process. As adumbrated in my 2014 book Is Administrative Law Unlawful? and developed in an article Chevron Bias, the constitutional problem with Chevron deference is twofold: its departure from independent judgment and its embrace of judicial bias
Impeachment: A Handbook
Get PDFCharles Black’s Impeachment: A Handbook, first published in 1974 at the height of the Watergate crisis, has become the authoritative guide on the subject of presidential impeachment. In September, the Yale University Press published a new edition of the classic handbook, incorporating a new preface and new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in the Essay that follows.
Because Professor Black’s original text had no accompanying notes, the publisher decided to continue this format in the new print edition. In this re-publication, the Journal worked with Bobbitt to present his chapters with extensive notes in order to provide a resource for students, scholars, lawyers, journalists, and public officials
Transformative Change at Rikers Island and Beyond: The Department of Investigation’s Campaign to Clean up the NYC Department of Correction
Get PDFSince 2014, Commissioner Mark G. Peters has led the New York City Department of Investigation (DOI) in a wide-ranging campaign to root out fraud, waste, and abuse in the Department of Correction (DOC), focusing primarily on problems in the areas of DOC leadership and the city jails on Rikers Island. This heightened scrutiny came in response to revelations of widespread abuse in New York City’s jails–especially on Rikers Island. As a result of DOI’s efforts, over three dozen correction officers and other DOC staff have been arrested since 2014, and DOC top leadership has been replaced. As recently as February 2018, DOI reports have shown that these problems are pervasive and deeply rooted in DOC. This brief examines DOI’s campaign, with analysis of its successes and some thoughts on what lies ahead