Chapter 12 discusses accountability in regulation. Accountability is part of a family of concepts that relate to the exercise of power and its abuses. It construes the relationship between regulators and regulatees according to principal-agent theory and explains how accountability can be an important mechanism for requiring answerability, ensuring that agents (regulators) do not drift from the interests of regulatees. The chapter explains that accountability consists of four elements: (i) a duty to explain; (ii) exposure to scrutiny; (iii) a potential ‘sanction’ or a consequence of some kind; and (iv) the possibility of being subject to independent review.

This chapter describes two areas of legal theory that consider when means-based adjustments to legal rules may not be desirable. Under one perspective, means-based adjustments designed for redistributive purposes should be reserved for the tax system alone, since introducing means-based adjustments to other legal rules would entail greater efficiency costs. A second literature considers the desirability of a legal system that is impartial, nondiscriminatory, and general in its application. Subjecting taxpayers to different legal rules based on means could also undermine these important criteria. This chapter considers how means-based adjustments to the tax compliance rules should be evaluated from each of these perspectives, and why they would be justified even in cases where means-based adjustments to other legal rules would not be.

This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

Analyzes the acquittal of Donald Trump in his first impeachment trial, detailing the reasons given by senators who voted to convict and acquit, and advances lessons from the acquittal.

Describes the Senate trial of Donald Trump’s first impeachment, with detailed analysis of the procedural maneuvers by Trump’s defenders and accusers, the role of the Chief Justice in the trial, and the arguments of the House Managers and Trump’s counsel.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This chapter reviews the four primary stages of private criminal justice – enforcement, settlement, adjudication, and punishment – and evaluates potential legal reforms to optimize the benefits and minimize the costs of the private criminal justice system. For the enforcement stage, the chapter rejects current attempts to subject private police to the constitutional rules that regulate public police, and instead recommends decreasing the burdens of filing a civil lawsuit against private police who violate the law. For the settlement stage, the chapter proposes legalizing criminal settlements and abolishing most “duty to report” laws. For the adjudicative stage, the chapter recommends a flexible standard of due process along with a robust privilege for private adjudicators and atraining and licensing scheme. For the punishment stage, the chapter again argues in favor of increased civil liability, but argues against changing the definition of self-defense used by most jurisdictions.

Judiciaries in England emerged from four interacting historical sources. At the foundation lay the authority of monarchs empowered to judge their subjects’ rights, duties and status by virtue of the regal office. The second form of judiciary arose by royal delegation of decisional power to dedicated judges sitting in permanent courts of common law, or to executive courts with a more political mandate. A third source of judicial power was local and widely distributed, whereby groups or associations or sub-units of government solved disputes and allocated rights and duties as a process of self-direction, taking place for example in manors, boroughs, guilds, and church assemblies.

The fourth chapter examines the depiction of torture in the Decameron. Boccaccio was fascinated by torture from both an epistemological and narratological standpoint. The greatest storyteller of the Middle Ages could not ignore the enticements of omniscience and narrative closure it proffers. The chapter argue specifically that Boccaccio saw a parallel between plot and due process, on the one hand, and torture and dénouement, on the other. What does torture tell us about the sense of an ending? The torture of Martellino by the sadistic Trevisan judge (2.1) is played as farce. In the tale of Zinevra-Sicruano (2.9), torture provides a happy ending within the fantasy world of romance. In the novella of Tedaldo (3.7), the romance of torture is domesticated by due process and the contingency of the novella form. Respect for due process and plot are abandoned in controversial final novella of the Decameron, the story of Griselda (10.10). After years of imposing unimaginable suffering on his young bride, Gualtieri finally gets his happy ending—but one that makes us question the nature of all endings.

The multi-faceted role of arbitrators is complex and protean. While there is consensus on the fact that the nature of the international arbitrator’s role entails according the arbitrator wide-ranging powers and that the arbitrator also undertakes a panoply of obligations, the scope of these powers and duties is not always well defined.Views about the nature and scope of these powers and duties might diverge depending on whether arbitrators are seen as service providers, justice purveyors, or both. Following a brief overview of this core question, the contribution proceeds to identify the sources of an arbitrator’s powers. Next, the most important duties of international arbitrators, including those pertaining to ethical obligations, the need to ensure due process, the necessity to apply the proper law, the duty to provide a reasoned award, and several others are explored. This contribution also highlights the most important rights of international arbitrators, such as the right to receive good faith cooperation from the parties, as well as the rights to remuneration and immunity, amongst others. Finally, we make some observations on ways in which the rights and duties entailed by the complex mandate of arbitrators can be reconciled in the event of conflict.

This chapter, while acknowledging that there are certain differences and similarities in how the law treats standards development organizations (SDOs) that develop voluntary standards, offers a holistic analysis of the procedural principles introduced in the WTO, EU, and US regulatory frameworks, namely, transparency, openness/participation, consensus, impartiality, balance, effectiveness, relevance, coherence, coordination, concerns of developing countries, appeal, and access to standards, which this study collectively refers to as “due process” principles. This chapter further explores the relevance and suitability of these principles to the different types of standards bodies and identifies the shortcomings of each of the legal mechanisms with regard to ICT standardization. It concludes that these principles are formulated rather flexible and, to be effective, need further concretization by SDOs.

This chapter analyses the extent to which the legal instruments discussed in Chapters 3, 4, and 5 apply to the examined SDOs. It also evaluates these organizations’ rules and procedures against the due process requirements of the applicable regulatory frameworks discussed in Chapter 6. While acknowledging the heterogeneity of the organizations’ operational frameworks, this chapter also emphasizes that their organizational rules – while designed in self-regulatory processes – should yet be considered within the legal constraints of the applicable regulatory frameworks. Indeed, SDOs enjoy a wide discretion not only to implement the due process requirements, but also to determine what these requirements mean, defining such terms as “consensus,” “openness,” and “balance” in their procedural rules. While observing that there are different ways to implement due process principles into the organizations’ procedures, this chapter notes that the level of procedural guarantees offered during the different stages of decision-making differs per organization, but is often insufficient from the perspective of legitimacy.