A computational model for geomagnetically trapped particle shells and kinematic parameters Technical report, Oct. 1965 - Jun. 1966

Computer program to calculate geomagnetically trapped particle shell model, drift rate, and bounce path

Democracy and Tort Reform in the U.S.A.

Democracy in the United States of America is in decline. In much the same way that progressive tort reform was made possible by democratic gains since the 1950s, the current tort retrenchment has been made possible by our democratic losses since the 1980s. Just as tort reform in the 1960s and 1970s helped consolidate and protect our democratic gains, the tort “reforms” from the 1980s to the present have helped further consolidate and protect our rising plutocracy. After a brief introduction setting the stage in broad stroke for the argument that follows, part II draws on recent literature in the field of political science detailing the extent of our economic inequality while parts III and IV draw on that literature to show how our economic inequality is bound up with political inequality and the demise of our democracy, both in terms of being heard by those who represent us (part III), and in terms of having a voice to reach those who represent us (part IV). Gross inequality in political voice is bound up with a lack of responsiveness and accountability and this in turn leads to the erosion of government interventions to correct or counterbalance the ever widening gap between the “haves” and “have-nots” in our country. As Part V illustrates, interventions by the courts and legislators in the area of torts follows this model. This is illustrated by counter-democratic interventions by the Supreme Court as well as the bulk of tort reform efforts since the 1980s. Part V, will first briefly address the larger terrain of tort reform (both progressive and regressive) before turning to the role of the Supreme Court in tort reform. The article concludes with some brief comments on recent developments in the area of products liability which may provide a ray sunshine on the otherwise gloomy condition of tort law and democracy in the United States

The Noble Business of Incumbentocracy: A Reply to ‘The Sordid Business of Democracy’

Note: This essay is a response to Daniel Tokaji, The Sordid Business of Democracy, 34 Ohio Northern University Law Review 341 (2008). The term incumbantocracy appears to have been coined by Jamin B. Raskin in The Supreme Court\u27s Double Standard, where he argued that voters don\u27t really pick public officials on Election Day because public officials pick voters on redistricting day. THE NATION, Feb. 6, 1995, at I 67-68. If democracy is a sordid business—a base, dirty, and ignoble business—then perhaps it is not too much of a stretch to say that there is something simple, clean, and noble about the business of incumbantocracy. This should ring a discordant note. lncumbantocracy, and not democracy, is the problem which calls for the courts to intervene. lncumbantocracy involves the sordid business of gerrymandering districts and fixing elections so that those in power stay in power, regardless of what the voters might wish or how they vote. Incumbantocracy is dirty politics, and trying to eliminate this practice is, no doubt, a dirty and difficult job; but one should not confuse the problem with the solution. If democracy is, in fact, a sordid business, the alternatives are much worse. As Abraham Lincoln once said, democracy consists of a government of the people, by the people, for the people. Democracy is supposed to include the continuing responsiveness of the government to the preferences of its citizens, considered as political equals. The present state of incumbantocracy in the U.S. all but ensures that representatives do not, in fact, represent the people. They are not accountable or responsive because there is little to no political pressure to keep them accountable

The Transformation of South African Private Law after Ten Years of Democracy: The Role of Torts (Delict) in the Consolidation of Democracy

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. Several important and progressive developments that took place in the United States during this period did not occur in South Africa. Even if parts of the law of delict were not tainted, the values underlying apartheid delict are inconsistent with the values and aspirations of the new South Africa. As such, the law of delict was in need of transformation. The remainder of the article details the values of the democratic transformation, the constitutional mechanisms for the harmonization of delict with those values, and the developments in the law of delict that have taken place in light of those values. In sum, just as delict was part of the cancer of apartheid it is now part of the cure. The transformation of South Africa has propelled changes in the law of delict and those changes in turn have added fuel to the transformation, helping to further consolidate South Africa’s democracy

The Transformation of South African Private Law After Twenty Years of Democracy

In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of its first decade, South Africa had made considerable progress developing private law, but there was still much work to be done in developing the law of delict, and especially contract law. This article evaluates South Africa’s second decade of constitutional democracy. While South Africa continues to make democratic gains, it also faces serious problems with race, gender, and wealth inequality. This article reviews South Africa’s democratic achievements and challenges over the last twenty years. It provides a brief overview of private law under apartheid before addressing a number of post-apartheid democracy-reinforcing changes to private law. It then analyzes the historically conservative common law of contracts and a recent case that progressively develops the law of contracts and delict. Next, it turns to the Consumer Act of 2008, which has important implications for both contract law and delict. The Act is analyzed in light of two contrasting dramatic helicopter crashes: one that occurred before the Act came into effect, and one after. While there has been considerable progress, there is still a need for improvement. More can be done to align private law with the Constitution’s values, to confront persistent inequality, and promote freedom, dignity, and access to justice. Such breakthroughs would also deepen and stabilize South Africa’s democracy by bringing democratic principles and values into the everyday lives of those affected by private law

Remedies for Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations or Custodianship in South Africa and the U.S.

Oliver Wendell Holmes, writing for the Court in Pennsylvania Coal Co. v. Mahon (1922), started the regulatory takings tradition in the U.S. with his famous line that “if regulation goes too far it will be recognized as a taking” deserving of just compensation. As this paper will show, how far is too far depends on where you are. Under the Fifth Amendment to the U.S. Constitution, regulations do not need to go as far as they once did, and under the law in states like Oregon and Florida, regulations do not need to go very far at all before one is entitled to compensation. Across the ocean in South Africa, the same regulation that went too far in Mahon would not constitute a taking at all under the South African Constitution’s main property provision, Section 25, or at least not an expropriation that required compensation. Under South Africa’s Constitution, it is very difficult for regulations to go too far, and South Africa’s dominant political party, the African National Congress (ANC), has mooted the idea that Section 25 has stood in the way of it going far enough to effect transformation

Another Case in Lochner’s Legacy, the Court’s Assault on New Property: The Right to the Mandatory Enforcement of a Restraining Order is ‘a Sham, Nullity and Cruel Deception’

This article provides a thorough critique of the Supreme Court decision of Castle Rock v. Gonzales 125 S. Ct. 2796 (2005) which dismissed respondent’s case for failing to establish that she had a property right in the enforcement of a restraining order that was worthy of procedural due process protection. The article critiques the Court’s methodology and substantive arguments. The article concludes by situating the decision in “Lochner’s legacy,” a legacy of decisions that Cass Sunstein has identified as privileging “government inaction,” and “the existing distribution of entitlements” as set by the common law. Just as the Lochner Court decided that it was for it to determine the meaning of “liberty” when it struck down a New York statute designed to limit the hours of bakers for their health, the Court in Castle Rock has decided it is for it to determine the meaning of “property,” by rewriting a statute designed to make enforcement of restraining orders mandatory for the safety of those granted orders. Just as the Lochner Court chose the liberty of employers over the health of workers, the Court in Castle Rock has chosen the liberty of police officers over the safety of victims of domestic violence

Remnants of Apartheid Common Law Justice: The Primacy of the Spirit, Purport and Objects of the Bills of Rights for Developing the Common Law and Bringing Horizontal Rights to Fruition

The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’ Professor Anton Fagan’s argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is based on a mischaracterization of the Hart-Fuller debate that is both unconvincing and inappropriate. Both he and Professor Stuwart Woolman are incorrect to elevate rights over the spirit, purport and objects of the Bill of Rights. The s 39(2) approach to developing the common law does not make the Bill of Rights vanish; rather, it provides a mechanism for bringing horizontal rights to fruition. Finally, s 39(2) is not merely a mechanism for achieving coherence; it is a mechanism for achieving a coherent and just legal system that is superior to Fagan’s preferred mechanism of leaving justice up to the individual moral convictions of judges