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The Neglected Role of International Altruistic Investment in the Chinese Transition Economy
Get PDFThis Article discusses the positive role of altruistic investment in any transition economy by making specific reference to altruistic investment in the Chinese economic transition. The Article discusses the social welfare hardships arising from the transition process and then discusses the U.S. and Chinese tax incentives and barriers to altruistic investment that would lessen that hardship. After that, the Article discusses the reasons why both countries might prefer to retain those barriers. Finally, the Article concludes that altruistic investment has more positive then negative consequences and makes a simple proposal to stimulate altruistic investment in China in a manner that would assist the transition process without sacrificing either country\u27s mutually exclusive goals. The proposal, that the WTO recognize, encourage, and integrate altruistic investment through international tax policy, is useful not only in China but in other developing or economically reforming countries
Water Follies: Groundwater Pumping and the Fate of America\u27s Fresh Waters [Review of book by Robert Glennon]
Get PDFThis is a fun book to read. Most books of this genre decry a serious environmental problem and seek to influence a particular legal response to it. Those books tend to be long on details and heavy-handed in their advocacy. Many operate on the premise that the solution being presented requires an active effort at persuasion to convince the reader of the proposal\u27s worth. This book is better: it tells fascinating stories, weaves together a series of poignant vignettes, and guides the reader to the desired conclusion implied by the book\u27s title-America\u27s water law in relation to groundwater pumping is sheer folly
Structuring Sentencing: Apprendi, the Offense of Conviction, and the Limited Role of Constitutional Law
Get PDFEvery year hundreds of thousands of convicted criminal defendants are sentenced for their crimes, often through the implementation of a broad range of laws of relatively recent vintage such as mandatory minimum provisions and regulations of judicial discretion like the Federal Sentencing Guidelines. The policies underlying these sentencing laws are perhaps the most hotly contested issues in all of criminal procedure, with legislative amendments and calls for reform being made every year. Despite their tremendous importance and the constant political activity concerning them, however, the constitutionality of these laws is surprisingly uncertain-the United States Supreme Court has heard an astounding eight cases in six years on that single issue. With the stroke of a pen, a majority of the Court could redefine the constitutional criminal procedure of sentencing, strike down many or all of these sentencing laws, and potentially overturn the sentences imposed on millions of federal and state defendants nationwide. After the decisions in Jones v. United States and Apprendi v. New Jersey, which invalidated criminal sentences on Sixth Amendment grounds because the defendant\u27s maximum penalty had been enhanced by findings of fact made by the sentencing judge rather than the trial jury, many observers predicted that the Court had embarked on a journey that would lead it to do exactly that. The strident dissents in those 5-48 cases lamented as much. They objected to the Court\u27s watershed change in constitutional law, for cast[ing] doubt on sentencing practices and assumptions followed not only in the federal system but also in many States, and decried that it would unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of\u27 these cases. The prediction about the effect on federal court dockets, at least, certainly came true: within two years, there were thousands of Apprendi claims raised at all levels, and six circuits announced en banc decisions related to Apprendi. Two years later, however, the Court slammed on the brakes, seemingly stopping the impact of Apprendi in its tracks. In Harris v. United States a different five-justice majority ruled that it was constitutional for the imposition of an enhanced mandatory minimum sentence to be based on a determination by the sentencing judge and not on a trial jury finding. This holding apparently preserved the constitutionality of most modem sentencing laws, in particular statutory mandatory minimum sentences and the Federal Sentencing Guidelines. The Court\u27s newly promulgated doctrine distinguished between findings of fact that establish or increase a convicted defendant\u27s maximum sentence on the one hand, and findings of fact that determine or increase the defendant\u27s minimum punishment on the other. Yet while the results of Apprendi and Harris each commanded a narrow majority of the Court, at least five justices also agreed that the distinction between the two results was illogical. Even though his vote was dispositive, Justice Scalia, one of the Court\u27s most prolific opinion-writers, was silent in Harris. And the Harris dissenters condemned the end of the supposed incipient Sixth Amendment revolution with the same vigor that their now-victorious counterparts had feared its arrival. For an issue of such surpassing importance to the legislative design of criminal sentencing laws, the Court\u27s inability to find a stable justification for its constitutional doctrine is deeply troubling. The intellectual quandary found in the Court\u27s opinions in the Apprendi line of cases results from imprecision in analyzing the constitutional issue. In adjudicating the constitutionality of the various sentencing provisions it has considered, the Court has analyzed the constitutional question solely in terms of the Jury Trial guarantee of the Sixth Amendment and has relied almost exclusively upon an originalist method of interpreting that clause. This narrowly drawn analysis is confounded by a factual and historical posture that dooms the inquiry from the start, and has led the Court to its present intractable divisions over the constitutional law of sentencing. The Court\u27s holdings in Apprendi and Harris are eminently defensible as a matter of constitutional law---and entirely logical-when analyzed in the proper way. Rather than focusing only on the Sixth Amendment, the constitutional law of sentencing must be examined through a much broader perspective. In addition to the trial jury and sentencing judge, the powers held by the legislature and prosecutor also must be considered. Similarly, instead of the original understanding of a single clause, the constitutional law of sentencing derives from structural reasoning about the allocations of power to those four institutions found in the criminal procedure provisions of the Constitution. This broader analysis is the constitutional structure of criminal procedure established by the Constitution\u27s text. At the core of the Constitution\u27s institutional balance of power in criminal procedure is the concept of a criminal defendant\u27s offense of conviction: the crime that is enacted, charged, tried to verdict, and punished. Many well-known constitutional protections, including the Sixth Amendment right to trial by jury, apply to one or more of the first three stages of a criminal offense. The constitutional issue raised by the Apprendi line of cases involves the relationship of the concept of the offense of conviction to the sentencing stage of a criminal case. Analyzing the structural framework of constitutional criminal procedure demonstrates two fundamental conclusions about the constitutional law of sentencing. One is that a defendant\u27s sentence is unconstitutional if it exceeds the maximum penalty provided for the offense of conviction established by the guilty verdict--the principle safeguarded by the Apprendi rule. The other is that sentencing laws that regulate the determination of a defendant\u27s sentence within the maximum penalty provided by the offense of conviction are consistent with the constitutional structure of criminal procedure and therefore are constitutional---the doctrine promulgated in Harris. The constitutional structure analysis concludes that some allocation of power among the four institutions-legislature, prosecutor, trial jury, and sentencing judge-is both unavoidable and necessary. More significantly, subject to the narrow constitutional limitation provided by the Apprendi-Harris rule, the legislature is the institution vested with the authority to determine that allocation with respect to the definitions of criminal offenses and the imposition of sentences for their violations. One legislature might enact offenses and a sentencing scheme in which nearly all power to determine a defendant\u27s sentence rests in its hands and those of the prosecutor. By contrast, another legislature might do the opposite and enact a system in which the sentencing judge plays a nearly dispositive role in setting the defendant\u27s punishment. The constitutional structure analysis explains why the Constitution equally permits both of these choices (and others) and justifies the outcomes of Apprendi and Harris far more persuasively than the Court\u27s opinions. Within the wide bounds permitted by the constitutional structure of criminal procedure, the legislature may design and implement a wide variety of sentencing laws without violating the Constitution. Part I of this Article summarizes the historical developments that led to the Apprendi line of cases. After reviewing the constitutional history of sentencing, it describes how recent statutory innovations created the new constitutional question the Court faces. It then analyzes the Apprendi line of cases and describes the Sixth Amendment interpretive impasse that has arisen in the Court\u27s decisions. Part II explains the constitutional structure of criminal procedure and applies that analysis to the problem of the constitutional law of sentencing presented in the Apprendi line of cases. It justifies both the Apprendi rule and the Harris rule and rebuts several counter-arguments. Finally, it describes the consequences of the constitutional structure analysis for the future of the constitutional criminal procedure of sentencing
Theater Law: Cases and Materials
No full textAlthough normally thought of in terms of its creative and artistic values, staging a play or musical involves numerous legal relationships and obligations. Accordingly, this casebook provides the first comprehensive overview of the law governing the theater industry. Among the subjects examined are the history of the theater; the practice of theater law; the creative rights of playwrights; the financial rights of producers and investors; the employment rights of directors, performers, and crew members; and the attendance rights of audiences. While principally concerned with Broadway and Off-Broadway productions, the final two chapters focus on road tours and amateur theater groups.
The casebook\u27s 104 principal readings use the battles fought over some of Broadway\u27s biggest shows to spark student interest and promote classroom discussion. The line-up includes such hits asAnnie, Bus Stop, Cats, Guys and Dolls, Jekyll & Hyde, Jesus Christ Superstar, Miss Saigon, My Fair Lady, Rent, South Pacific, The King and I, The Music Man, The Phantom of the Opera, The Producers,The Sound of Music, and Urinetown. Also taking turns are such notable figures as Jackie Mason, Ann Miller, Rosie O\u27Donnell, Eugene O\u27Neill, Lynn Redgrave, Neil Simon, Cicely Tyson, and Tennessee Williams.
Supplementing the principal readings are 145 notes, 28 problems, and nine appendices. While the notes and problems help students sharpen their grasp of the underlying concepts, the appendices reproduce the essential contracts used by theater lawyers. Because the chapters have been written in stand-alone fashion, instructors are able to rearrange them to fit their interests and time requirements.
Jarvis, Chaikelson, Corcos, Edmonds, Garon, Ghosh, Henslee, Kende, Palmer, Schultz, Scordato, and White have avoided squib cases, used both legal and non-legal materials, and included numerous references to secondary sources. The result is a highly-engaging work that supports both survey courses and seminars and fills the gap left by entertainment law casebooks, which tend to focus on movies and television. At the same time, it provides instructors with an opportunity to bolster their students\u27 understanding of such fields as anti-trust law, arbitration, contracts, First Amendment law, labor and employment law, professional responsibility, and torts.https://commons.law.famu.edu/faculty-books/1019/thumbnail.jp
Deconstructing Babel: Toward a Theory of Structural Reparations
Get PDFThe apparent inability of contemporary reparations scholars to reach consensus on prudential considerations such as structure and purpose undermines efforts to obtain reparations of any sort. The Author finds intriguing recent proposals that see black reparations claims not as litigation vehicles, but as broader invitations to re-energize discussions of racial equity via rehabilitative o r inward looking transformations that stress black institutional capacity building. This Article posits that the idea of rehabilitative or structural reparations continues to have both conceptual and pragmatic currency. However, successful implementation of this idea demands that scholars and activists reacquaint themselves with the meaning of structural reparations as that concept was generally understood during Reconstruction where it first gained favor
Florida A&M University College of Law Newsletter and Annual Report Volume 1, Issue 4
Get PDFhttps://commons.law.famu.edu/newsletters-pubs/1000/thumbnail.jp
Florida A&M University College of Law Newsletter Volume 1, Issue 1
Get PDFhttps://commons.law.famu.edu/lawyernewsletter/1000/thumbnail.jp
The Peace and Security Council of the African Union: The Known Unknowns
Get PDFThe protocol establishing the Peace and Security Council of the African Union (AUPSC Protocol) will likely come into force in 2004 and will serve as the continent\u27s first continent-wide, regional, collective security system. This article examines how African states chose to evolve the African Union regional collective security system. Particular attention is devoted to the concept of conflict management through military intervention in the AUPSC Protocol and relevant constitutive acts of African regional organizations. The first section analyzes key provisions of the Protocol. The second section contemplates the impact of the Protocol once it enters into force and the main stumbling blocks that will need to be addressed, including trans-regional conflicts of law. The third, concluding section suggests ways to strengthen the enforcement aims of the AUPSC within the context of the current African system
