The Law and Ethics Collection focuses on academic theses concerned by ethical aspects in law.

تقديمات حديثة

  • The Hazards of Legal Fine Tuning: Confronting the Free Will Problem in Election Law Scholarship

    Fitts, Michael A. (Penn Law: Legal Scholarship Repository, 1999-06-01)
  • Accountability: Fundamental to Democracy

    Waldron, Jeremy (NELLCO Legal Scholarship Repository, 2014-05-01)
    This paper defends a new and aggressive version of the agency model of accountability. It argues that officials and representatives in a democracy have an obligation to make available to citizens full information about what they have been doing. It is not permissible for them to sit back and see if the citizens can find out for themselves what they have been doing, any more than such a posture would be admissible in a commercial agent such as a realtor or an accountant. The paper also does several other things: (1) it develops a contrast between agent-accountability and forensic-accountability; (2) it distinguishes between political uses of "agency" and political uses of "trust" in political theory; (3) it develops a layered account of the principals in the democratic relation of agent-accountability, rejecting the reidentification of "the people"; (4) it develops an account of the relation between accountability and elections, emphasizing that elections play an important role in the fair settlement among principals as to how they should deal with their agents; (5) it shows that Burkeian representation is not incompatible with agent-accountability; and (6) it uses the notion of agent-accountability to illuminate the distinction between non-democratic and democratic republics.
  • Impeach Brent Benjamin Now!? Giving Adequate Attention to Failings of Judicial Impartiality

    Stempel, Jeffrey W. (Scholarly Commons @ UNLV Law, 2010-01-01)
    In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign. Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision was that in the state court proceedings, the Caperton plaintiffs had merely sought Justice Benjamin’s recusal pursuant to the West Virginia and ABA Model Codes of Judicial Conduct, both of which require only that a reasonable person might question the judge’s impartiality, a criterion seemingly satisfied by the $3 million Blankenship had spent on Justice Benjamin's behalf. Notwithstanding what should have been an easy and straightforward decision, Justice Benjamin persisted in applying the wrong legal standard (insisting that he must subjectively view himself as biased in order to recuse) in the face of repeated efforts to correct his errors over the course of the case. Even after certiorari was sought, Justice Benjamin persisted in a rear guard action with a tardy concurring opinion and a press release trumpeting his asserted fairness. Close examination of Justice Benjamin's bizarre handling of the issue reveals that this was more than a mistake made in the heat of a fast-moving case and instead reflects grave judicial error reflecting lack of legal skill, overly emotional defensiveness, or perhaps even intent to flout the law on behalf of a campaign supporter. Appreciating the magnitude of Justice Benjamin's mistakes-cum-misconduct suggests that the West Virginia Commission on Judicial Discipline make serious investigation of the matter and impose appropriate sanctions. The episode illustrates the need for the legal system to take more seriously the problem of judicial resistance to disqualification.
  • Counter-Majoritarian Power and Judges' Political Speech

    Dimino, Michael R. (bepress Legal Repository, 2005-08-12)
    Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity. This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on judicial politics limit the public’s ability to alter judicial policy at the ballot box and induce respect for the courts by creating an unrealistic image of judges as apolitical, ultimately increasing the authority of courts to effect policy immune from the influence of the public. As a result, this Article argues, judicial-free-speech cases pit those who cherish the independence of the courts and fear majority tyranny against those who fear unaccountable judicial legislating. Though each of the Justices is approximately equally likely to strike down legislation, the Justices dissenting in White display their counter-majoritarian tendencies in salient issue areas such as criminal procedure, which is often the predominant issue in judicial elections, and decisions upholding judicial-speech restrictions speak in glowing terms of the need for an independent judiciary that protects the unpopular. In contrast, the Justices in the White majority tend to strike down legislation about which few members of the public are aware, and decisions striking down judicial-speech restrictions often warn of the dangers posed by judges who use their independence to enact policy with which most people disagree. By striking down a rule insulating judges from the public, White should make courts more accountable in salient issue areas – a result the Justices in the White majority welcome but which the dissenters discountenance. For many Justices, the First Amendment, it seems, is secondary.
  • Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism

    Pettys, Todd E. (SelectedWorks, 2012-01-01)
    From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting judges because one disagrees with some of their decisions is intrinsically inconsistent with the rule of law, while the consequentialist arguments contend that anti-retention campaigns threaten to degrade the integrity, fairness, and impartiality of the states’ judicial systems. In this Article, I push back against the common wisdom in legal circles by arguing that the leading rhetorical strategies of those who seek to defend judges against anti-retention campaigns are fundamentally misguided. I contend that the deontological arguments are usually false and the consequentialist arguments lack the rhetorical power necessary to persuade morally outraged voters to set their anger aside on Election Day. I conclude that either we should abandon judicial retention elections altogether and limit appointed state judges to single terms, or those judges and their defenders should set aside their historic reluctance to engage citizens in civil discourse about controversial rulings and their legal and moral underpinnings.
  • Collective Choice

    Schwartz, Justin (SelectedWorks, 2011-01-01)
    This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility of democratic decisionmaking at all. I focus on the two constraints most writers have thought most vulnerable to relaxation, one implying that interpersonal comparisons of utility are impossible or unattainable, and that the decisions must be collectively rational in giving single unique ranking of all alternatives. I show that the standard attempts to evade the Arrow problem by relaxing these requirements fail. I also discuss versions of the objection that the Arrow problem somehow misses the point of democratic decisionmaking, and show that the main such approaches, Jon Elster's appeal to deliberative democracy, Arrow's own idea that the conditions giving rise to the problem arise infrequently, Alfred McKay's attempt to impose an implausible mathematical condition on collective deliberation, and Elizabeth Anderson & Richard Pildes' theory that value incommensurability renders collective rationality irrelevant, all fail because they do not evade the problem, are ad hoc, or presuppose its premises. I conclude that the Arrow Impossibility Theorem still poses a major and surprisingly intransigent theoretical problem for democratic theory. This research was supported by funding from the John Marshall Law School
  • Kyrgyz Republic Judicial System Diagnostic : Measuring Progress and Identifying Needs

    World Bank (World Bank, 2012-03-19)
    The Joint Country Support Strategy for the Kyrgyz Republic (2007-2010) (JCSS), extended in 2008 to cover the period 2009-2011, identified the weak and inefficient Kyrgyz legal and judicial system as contributing to a poor business environment and weak governance. As a result, JCSS partners identified 'comprehensive judicial reform' as a program focus and a goal of the JCSS which was enlarged to include independence for the judicial budget. As part of the JCSS, the World Bank program included the preparation of a 'judicial reform study'. In order to implement this program, the World Bank and the Swiss Agency for Development and Cooperation (SDC) agreed to fund this judicial system diagnostic conducted by a World Bank diagnostic team complemented by international experts in specific sectors. The diagnostic's objective is to provide an analysis of the institutional and operational issues and obstacles that constrain the functioning of Kyrgyzstan's legal and judicial system. The diagnostic provides recommendations for overcoming key constraints both at the policy and the implementation levels.
  • Caperton, Due Process, and Judicial Duty: Recusal Oversight in Patrons’ Cases

    Sheppard, Steve (SelectedWorks, 2011-01-01)
    In celebration of the life of Judge William E. Enfield, this article discusses the necessity of granting all litigants the right to fair trials with impartial judges. Judges should recuse themselves from cases that involve conflicts of interest, which may result in partiality from the bench. However, judges do not always opt for recusal, even when their impartiality is in question. In Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the Court evaluated West Virginia Supreme Court Justice Brent Benjamin’s decision not to disqualify himself from a case involving a litigant who made large contributions to his election campaign. The Court’s ruling requires federal oversight over state judges who refuse to recuse themselves from cases involving patron litigants. Although the majority opinion in Caperton has drawn notable criticism from Professor Ronald Rotunda, there are at least two good reasons to support the Court’s majority. First, for most judges, Caperton does little to increase the constitutional burden on them. Even before Caperton, denied motions for recusal were reviewable by other courts. Now, under Caperton, federal courts may also review state court judges who refuse recusal requests. Second, a seemingly tainted judge’s assurance of propriety will do little to comfort a concerned litigant. Though no direct evidence in Caperton indicated Justice Benjamin would not have ruled impartially, it is appropriate to consider what the proper burden of proof would be. If Justice Benjamin had been crooked, he likely would not have disseminated concrete evidence of it. Without protecting against apparent impropriety, due process of law cannot protect litigants against actual impropriety. Allowing federal courts to review state court judges furthers the goal of providing fair proceedings to every litigant.
  • Impartiality: Balancing Personal and Professional Integrity in Judicial Decisionmaking

    Cravens, Sarah M. R. (The Berkeley Electronic Press SelectedWorks, 2008-01-01)
  • Counter-Majoritarian Power and Judges' Political Speech

    Dimino, Michael R. (bepress Law Collection, 2005-08-12)
    Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges' political activity.This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on judicial politics limit the public's ability to alter judicial policy at the ballot box and induce respect for the courts by creating an unrealistic image of judges as apolitical, ultimately increasing the authority of courts to effect policy immune from the influence of the public. As a result, this Article argues, judicial-free-speech cases pit those who cherish the independence of the courts and fear majority tyranny against those who fear unaccountable judicial legislating. Though each of the Justices is approximately equally likely to strike down legislation, the Justices dissenting in White display their counter-majoritarian tendencies in salient issue areas such as criminal procedure, which is often the predominant issue in judicial elections, and decisions upholding judicial-speech restrictions speak in glowing terms of the need for an independent judiciary that protects the unpopular. In contrast, the Justices in the White majority tend to strike down legislation about which few members of the public are aware, and decisions striking down judicial-speech restrictions often warn of the dangers posed by judges who use their independence to enact policy with which most people disagree. By striking down a rule insulating judges from the public, White should make courts more accountable in salient issue areas - a result the Justices in the White majority welcome but which the dissenters discountenance. For many Justices, the First Amendment, it seems, is secondary.
  • Book Review

    Huang, Peter H. (Colorado Law Scholarly Commons, 2013-01-01)
    This review of Leo Katz's book, Why the Law is So Perverse, addresses three questions. First, does Katz draw the appropriate normative conclusions about legal perversities based on their connections to social choice theory? In other words, what are the legal ethics and professionalism implications of his book? Second, how does each of the legal perversities in the book follow from a particular social choice theory result? In other words, what is the precise theoretical connection between each of the legal perversities discussed and an impossibility theorem in social choice theory? Third, can we reinterpret our understanding of the seemingly dismal and negative impossibility theorems from social choice in a constructive and positive way to suggest how society can make the best of legal perversities? In other words, what are benign interpretations and positive versions of the social choice impossibility theorems and their implications for how society can deal with what Katz calls legal perversities?
  • Free Speech & Tainted Justice: Restoring the Public's Confidence in the Judiciary in the Wake of <em>Republican Party of Minnesota v. White</em>

    Jones, Gregory W. (Scholarly Commons @ IIT Chicago-Kent College of Law, 2009-12-01)
    The United States Supreme Court's 2002 decision in Republican Party of Minnesota v. White was the first shot fired in an ongoing battle over judicial campaign ethics. The White decision invalidated a Minnesota Canon of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political topics. Subsequent to White, numerous states have faced challenges to their judicial canons of conduct by groups advocating for an increased breadth of permissible speech in judicial campaigns. While White and its progeny have safeguarded the first amendment rights of judicial candidates, significant concerns have been raised regarding how best to preserve judicial impartiality in an era of modem campaigning. Preserving the remaining canons of judicial conduct is vital to avoid transforming judicial elections into the highly politicized contests typical of the executive and legislative branches of government. Moreover, modifications to current judicial disqualification and recusal standards are needed to place the appropriate emphasis on the importance of maintaining judicial impartiality. Finally, significant changes must be made to the way the courts handle recusal motions to ensure that a judge is never allowed to unilaterally evaluate his own impartiality. As judicial campaign spending continues is meteoric rise, the need to preserve the public's confidence in the judiciary has never been greater.
  • Understanding Caperton: Judicial Disqualification Under the Due Process Clause

    Bam, Dmitry (University of Maine School of Law Digital Commons, 2010-01-01)
    It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality to the national spotlight, but it has triggered a firestorm: Congress has held hearings examining judicial recusals in light of Caperton; states have grappled with new recusal rules and procedures, as well as changes to state judicial elections; and law schools around the country have held conferences and symposia dedicated to Caperton and judicial ethics. Together with the Court’s earlier ruling in Republican Party of Minnesota v. White, and this year’s decision in Citizens United v. FEC, Caperton is part of a trilogy that will shape our views of judicial independence and accountability for years to come. This essay argues that Caperton is often misunderstood and concludes that Caperton was not an easy case in large part because the Court rejected the well-established appearances-based recusal standard in favor of a probability-based one that looks at the likelihood of actual bias. And this seemingly minor shift changes the recusal landscape to a greater degree than is or has been appreciated. Furthermore, I argue, Caperton’s probability-based standard may contain a blueprint for an improved recusal framework across state and federal judiciaries. This essay proceeds in three parts. Part I explains the role that appearances have historically played, and currently play, in recusal decisions in the United States. Today, appearance of partiality, rather than actual fairness, is the key factor in judicial recusal under the federal recusal statutes and state judicial codes. This was not always so. Part II argues that Justice Kennedy’s majority opinion in Caperton properly limited, if not excluded, the role of appearances from its due process analysis. Some scholars, judges, and commentators, however, have wrongly interpreted Caperton’s “probability of bias” standard to be coterminous with the “appearance of bias” standard that currently controls recusal under federal statutes and state judicial codes. In this part, I will explain why I believe this interpretation is incorrect and why the Court’s opinion should be read to reject an appearance-based disqualification standard under the Constitution’s Due Process Clause. The final part of this essay discusses the implications of adopting a probability-based — rather than an appearance-based — recusal standard, and how states can use Caperton, and recusal generally, to address the public’s growing concern about the impartiality of an elected judiciary. I argue that in response to Caperton, states should change their recusal procedures — procedural like who reviews motions for recusal, appellate review of recusal decisions, the standard of appellate review, whether a written opinion explaining the recusal decision should be required — tailoring those procedures to the newly-announced probability-based substantive standard for judicial disqualification. In adopting these new recusal procedures, states should pay special focus to appearances, ensuring that the newly-adopted procedure creates an appearance of impartiality and fairness. As a result of greater emphasis on the appearance of procedural fairness, public’s confidence in the judiciary will increase.
  • A Military Ethic in an Age of Terror

    MILITARY ACADEMY WEST POINT NY; Hartle, Anthony E. (1987)
    National military forces throughout the world today are involved in combating terrorist activity, if only in terms of preparation. Capable organizations formulate and debate at length appropriate tactics and methods that will be effective in reducing the terrorist threat or in countering terrorist actions. As various headquarters and agencies examine the problem, a troubling issue arises for many. They must consider not only what they can do but also what they ought to do. Some measures that might be highly effective will also be highly questionable from a legal or moral point of view. Inherent in most discussions are moral issues that are at least partly determined by the codes of conduct that govern the military forces involved. In particular, the range of permissible actions by American military forces is unquestionably limited by the uncodified professional military ethic that governs its members. The moral complexity of counterterrorist and other likely operational commitments of US forces provides sufficient reason to suggest that a formally codified ethic should once again be considered. In this discussion, I am primarily concerned with revealing the moral structure within which such an ethic would be developed. In the United States today, both within the American military and among those considering and criticizing national policy, we find extensive debate concerning counterterrorist measures. In this context, I want to consider the implications of the professional military ethic for the debate about the moral acceptability of various counterterrorist tactics and techniques. I maintain that specific principles that provide the foundation for the American military ethic also place limits on what U.S. military organizations can do in fulfilling their responsibilities to defend the nation.
  • The Problem with Consenting to Insider Trading

    Katz, Leo (Penn Law: Legal Scholarship Repository, 2015-01-01)
  • A FRAMEWORK FOR CORPORATE SOCIAL RESPONSIBILITY IN ISLAMIC FINANCIAL INSTITUTIONS: THEORY AND EVIDENCE FROM GCC REGION

    ALQARAN-ALZIYADAT, NASER,SALIH (2016)
    The present research addresses the need for the development of a framework for implementing the Islamic CSR of IFIs that exist in conventional economies (i.e. mainly capitalism). The literature review reveals that CSR has never existed in any economic system other than capitalism, and that in spite of the fact that CSR has been based on various theoretical groundings, the ontological worldview of capitalism (mainly economic selfish man) and the epistemological considerations (mainly value-free scientific economic laws used in the production of knowledge) have influenced the understanding of CSR. Thus, the CSR literature fails to address mismatches between the micro objectives of businesses and the macro objectives of society. 
 Such mismatches are, however, taken into account in the Islamic theory of maqasid al-Sharia (Sharia objectives) and the Sharia jurisprudence method which facilitate the production of Sharia rulings through which a balance between micro and macro objectives is achieved. Thus, the present research aims to develop a framework for implementing Islamic CSR (ICSR) for IFIs, based on a built-in compliance with Sharia objectives and where Sharia objectives are achieved through the managerial implementation of Sharia jurisprudence. Four theoretical gaps in the literature on ICSR have been identified: (1) justification of the usage of the frameworks and models of conventional CSR on the basis of the Islamic worldview and epistemology, which are fundamentally different from those of capitalism; (2) the specification of methodologies appropriate to the Islamic worldview and epistemology; (3) the design of a framework for implementing Islamic CSR; and, (4) the design of a framework for measuring Islamic CSR.
 It is found that creating an innate ICSR framework is not an end in itself, but instead aims to achieve Sharia objectives that represent the socio-political economic objectives of society and businesses, and thus international CSR frameworks are used after adjusting them to the Islamic worldview and epistemology. Furthermore, the PDCA (plan, do, check act) cycle is deployed to implement the Sharia jurisprudence method underlying a managerial framework of implementing and measuring ICSR.
 The ability of the developed ICSR framework to describe reality has been empirically proven by testing nine null hypotheses against data collected from Sharia employees in IFIs in the Gulf Cooperation Council (GCC) region. Moreover, several statistical patterns are identified regarding the survey respondents’ levels of knowledge of maqasid al-Sharia and conventional CSR, and the influence of organisational and individual differences on both levels of knowledge and the implementation of ICSR. 
  • Core Labour Standards and International Trade [electronic resource] : Lessons from the Regional Context /

    Addo, Kofi.author.; SpringerLink (Online service)
    This book examines the labour standards provisions in a number of Regional and Bilateral Trade Agreements, and assesses the potential of using the relevant clauses in these trade agreements as a benchmark for a multilateral approach. Based on the lessons learned from the Regional model, the book proposes a Global Labour and Trade Framework Agreement (GLTFA) combined with a joint ILO/WTO enforcement mechanism to resolve the contentious issue of the link between the CLS and international trade. The history of the linkage between the Core Labour Standards (CLS) and international trade dates back roughly 150 years, and has recently become one of the most vexing issues facing policy-makers. At the heart of the debate is the question whether or not trade sanctions should be imposed on countries that do not respect the CLS as embodied in multilateral conventions administered by the International Labour Organization (ILO). Concretely, this would entail inserting a social clause in the World Trade Organization (WTO) rules, and would trigger the imposition of sanctions on those countries that do not adhere to the CLS.  Kofi Addo is a policy advisor to the Board of Governors of the International Baccalaureate Organisation. He holds a PhD in law from the University of Bern, Switzerland.    .
  • Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social Responsibility [electronic resource] /

    Kobel, Pierre.editor.; Këllezi, Pranvera.editor.; Kilpatrick, Bruce.editor.; SpringerLink (Online service)
    The book provides an analysis of the grocery retail market in a very large number of countries with an international report written by an economist. The second part of the book offers the analysis of liability issues in relation to non-compliance with CSRs with an international report by a British barrister. Both topics are very timely.
  • Legal Perspectives on Corporate Social Responsibility [electronic resource] : Lessons from the United States and Korea /

    You, Jeehye.author.; SpringerLink (Online service)
    This book offers readers a comprehensive and in-depth legal analysis of corporate social responsibility (CSR) by examining the theoretical foundations of corporate governance and its legal mechanism in the United States and South Korea. Moreover, it proposes legislative blueprint for establishing the legal frameworks that might serve to legitimize and effectively implement CSR in general. Reflecting the zeitgeist of improved corporate accountability and transparency, the ongoing movement to enhance CSR has permeated entire sectors of society the world over. Despite the apparent ubiquity of CSR, the corporate laws of many countries remain relatively silent on the issue, omitting to include any explicit provision governing the concept. Partly in response to this lack of legislation, Korean corporate scholars, for example, have attempted to introduce American legal theories, systems and laws on CSR into Korea. Yet traditional Korean jurisprudence provides no defining foundation for CSR; indeed, the prevailing view in jurisprudence and scholarship passively resists instituting corporate responsibility into the law. In response to this jurisprudential and academic shortcoming, and as an example for other countries, this book provides a comprehensive guide to the relevant legislation and theory on CSR in Korean corporate law by employing a comparative study of the relevant American theories and laws. Proceeding from this analysis, the book then puts forward a legislative blueprint for establishing a foundation to legitimize and effectively implement CSR.

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