46622 research outputs found
Sort by
Sponsors and Co-Sponsors of House and Senate Bills, Resolutions, and Memorials Introduced in House of Representatives
Get PDFhttps://scholar.law.colorado.edu/colorado-house-and-senate-journals/1595/thumbnail.jp
How Academic Law Librarian Fellowship Programs Benefit Participants & Sponsoring Institutions
Get PDFA Deliberative Democratic Theory of Precedent
Get PDFStare decisis is widely regarded as a vital mechanism for promoting the rule of law. Yet high courts can always overrule prior decisions with a special justification, and different justices will inevitably have different perspectives on when such a justification exists. Moreover, when courts rely on stare decisis to follow a mistaken or unjustified decision, they arguably undermine the rule of law. Stare decisis therefore does not, and probably cannot, reliably promote a formal conception of the rule of law.
While this reality might lead us to conclude that we should give up on horizontal stare decisis, presumptive deference to precedent may serve other worthwhile functions. This Article argues that rather than providing a binding legal constraint, presumptive deference to precedent is best understood as a mechanism for promoting the democratic legitimacy of a constitutional regime by facilitating reasoned deliberation within the judiciary regarding the most justifiable understanding of the Constitution and generating sustained constitutional dialogue of a deliberative and agonistic nature outside the federal courts. This Article thus contends that deliberation is the governing value that should be used to evaluate and implement stare decisis in practice. This Article explores what a deliberative democratic vision of precedent would entail and concludes that by shifting our focus from law to democracy we can develop a coherent and normatively attractive grand unifying theory of precedent that comports with the best understanding of American legal practice. This theory also provides a normative framework to critique the approach of the current Court and a descriptive lens that may offer potential hope for the future
How Private Actors Are Impacting U.S. Economic Sanctions
Get PDFEconomic and trade sanctions are typically understood as the exclusive province of governments and intergovernmental organizations. Private parties have, however, long played a role in sanctions regimes. For example, private plaintiffs holding unsatisfied, terrorism-related civil judgments have used various U.S. federal statutes to enforce those judgments against assets blocked by U.S. sanctions. Most recently, plaintiffs with judgments against the Taliban have used some of those federal laws to execute against the financial assets of Afghanistan’s central bank. These and other efforts to enforce terrorism-related civil judgments are more than just attempts to collect on outstanding damages awards. Rather, they allow private parties to utilize U.S. sanctions to further their own parochial, monetary goals. Through this involvement in the U.S. sanctions system, private plaintiffs are able to influence and even expand the scope and reach of U.S. sanctions while also reinforcing some of their most troubling consequences. Situating these private judgment enforcement suits within a broader framework of private involvement in sanctions, this Article demonstrates how private actors are participating in U.S. sanctions in ways that further their own personal interests, while also bolstering U.S. government policies that undermine civil liberties, target black and brown communities, and deplete the wealth of countries impacted by sanctions
How To (Not) Do Things with Judicial Opinions: Minding the Performative Power of Facts and Dicta
Get PDFThree generations of imbeciles are enough. l These words of Justice Oliver Wendell Holmes are some of the most infamous and evocative penned from behind the bench of the Supreme Court of the United States. Beyond the feelings of revulsion reading the opinion causes, the facts that Justice Holmes declared to be true and the dicta he used to bolster the Court\u27s holding in Buck v. Bell helped to create the social world we live in today and continue to affect it. Though previous scholarship has recognized the importance of acknowledging the performative power of words in the legal field, little of this scholarship has focused on judicial opinions. The existing studies of performativity and judicial opinions have primarily focused on rulings or the process of overruling and holdings. This Note uses the theory of performativity to better understand the precedential power of judicial opinions beyond their holdings. Acknowledging this power encourages judges to take greater responsibility for the parts of their opinions that do not directly state the law and undertake a more thoughtful writing process
Self-Intervention
Get PDFYou cannot intervene in your own case, duh! Yet the U.S. Supreme Court disagreed, holding that Federal Rule of Civil Procedure 24(a)(2) allows state legislative leaders, seeking to represent the state\u27s sovereign interest, to intervene when the attorney general is already representing the state\u27s sovereign interest. In this Article, I contend that the text, history, and practice of Rule 24(a)(2) prohibit such self-intervention. I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties in interest. I further conclude that such irregular joinder strikes at important state separationof- power principles that assign the representation of state litigation to executive officers. Finally, I show that a Federal Rule of Civil Procedure 25(d) substitution analysis is the stronger approach to suits such as these
Racism Pays: How Racial Exploitation Gets Innovation Off the Ground
Get PDFRecent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because they have monopsony power to do so. Workers of color have far fewer outside options than white workers, owing to intentional and structural discrimination against workers on the basis of their race. In the emerging digital economy, racial exploitation has paid off by giving innovators a workforce that is cheap, easy to scale, flexible, and productive—the kind of workforce that is especially useful in digital markets, where a first-mover advantage often translates to winner-take-all. This Paper argues that these workers should be paid the marginal revenue product of their labor, and it proposes a number of potential ways to do so: by increasing worker compensation or worker power. More generally, I argue that we should value the essential contributions of workers of color and immigrant workers who make innovation possible