scispace - formally typeset
Search or ask a question
Author

Randy E. Barnett

Bio: Randy E. Barnett is an academic researcher from Georgetown University Law Center. The author has contributed to research in topics: Originalism & Constitution. The author has an hindex of 19, co-authored 135 publications receiving 1701 citations. Previous affiliations of Randy E. Barnett include University of Chicago & Washington University in St. Louis.


Papers
More filters
Journal ArticleDOI
01 Jul 1977-Ethics
TL;DR: In this article, the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm-punishment is analyzed, and it is argued that this crisis could be solved by the adoption of a new paradigm of criminal Justice-restitution.
Abstract: This paper will analyze the breakdown of our system of criminal justice in terms of what Thomas Kuhn would describe as a crisis of an old paradigm-punishment. I propose that this crisis could be solved by the adoption of a new paradigm of criminal justice-restitution. The approach will be mainly theoretical, though at various points in the discussion the practical implications of the rival paradigms will also be considered. A fundamental contention will be that many, if not most, of our system's ills stem from errors in the underlying paradigm. Any attempt to correct these symptomatic debilities without a reexamination of the theoretical underpinnings is doomed to frustration and failure. Kuhn's theories deal with the problems of science. What made his proposal so startling was its attempt to analogize scientific development to social and political development. Here, I will simply reverse the process by applying Kuhn's framework of scientific change to social, or in this case, legal development.'

202 citations

Journal ArticleDOI

183 citations

Book
06 Feb 2014
TL;DR: In this paper, the authors introduce the concept of the first-order problem of knowledge and the second-order problems of knowledge, and the Third-order Problem of Knowledge, respectively.
Abstract: 1: Introduction: Liberty vs. License. PART I: THE PROBLEM OF KNOWLEDGE. 2: Using Resources: The First-Order Problem of Knowledge. 3: Two Methods of Social Ordering. 4: The Liberal Conception of Justice. 5: Communicating Justice: The Second-Order Problem of Knowledge. 6: Specifying Conventions: The Third-Order Problem of Knowledge. PART II: THE PROBLEMS OF INTEREST. 7: The Partiality Problem. 8: The Incentive Problem. 9: The Compliance Problem. PART III: THE PROBLEMS OF POWER. 10: The Problem of Enforcement Error. 11: Fighting Crime Without Punishment. 12: The Problem of Enforcement Abuse. 13: Polycentric Constitutional Constraints on Power. 14: Imagining a Polycentric Constitutional Order: A Short Fable. PART IV: RESPONSES TO OBJECTIONS. 15: Beyond Justice and the Rule of Law?

123 citations

Book
24 Nov 2013
TL;DR: In this article, the authors discuss the fiction of "We the People": Is the Constitution Binding on us? 11 CHAPTER Two Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People 32 CHAPTER Three Natural Rights as Liberty Rights: Retained Rights, Privileges or Immunities 53 PART II.
Abstract: Preface ix INTRODUCTION Why Care What the Constitution Says? 1 PART I. Constitutional Legitimacy CHAPTER ONE The Fiction of "We the People": Is the Constitution Binding on Us? 11 CHAPTER TWO Constitutional Legitimacy without Consent: Protecting the Rights Retained by the People 32 CHAPTER THREE Natural Rights as Liberty Rights: Retained Rights, Privileges, or Immunities 53 PART II. Constitutional Method CHAPTER FOUR Constitutional Interpretation: An Originalism for Nonoriginalists 89 CHAPTER FIVE Constitutional Construction: Supplementing Original Meaning 118 CHAPTER SIX Judicial Review: The Meaning of the Judicial Power 131 PART III. Constitutional Limits CHAPTER SEVEN Judicial Review of Federal Laws:The Meaning of the Necessary and Proper Clause 153 CHAPTER EIGHT Judicial Review of State Laws: The Meaning of the Privileges or Immunities Clause 191 CHAPTER NINE The Mandate of the Ninth Amendment: Why Footnote Four Is Wrong 224 CHAPTER TEN The Presumption of Liberty: Protecting Rights without Listing Them 253 PART IV. Constitutional Powers CHAPTER ELEVEN The Proper Scope of Federal Power: The Meaning of the Commerce Clause 274 CHAPTER TWELVE The Proper Scope of State Power:Construing the "Police Power" 319 CHAPTER THIRTEEN Showing Necessity: Judicial Doctrines and Application to Cases 335 CONCLUSION Restoring the Lost Constitution 354 Index of Cases 359 Index of Names 360 General Index 363

95 citations


Cited by
More filters
01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

Journal ArticleDOI
TL;DR: In this paper, the authors provide an empirical synthesis of the existing literature on the effectiveness of restorative justice practices using meta-analytic techniques. But, their positive findings are tempered by an important self-selection bias inherent in restorative research.
Abstract: This article provides an empirical synthesis of the existing literature on the effectiveness of restorative justice practices using meta-analytic techniques. The data were aggregated from studies that compared restorative justice programs to traditional nonrestorative approaches to criminal behavior. Victim and offender satisfaction, restitution compliance, and recidivism were selected as appropriate outcomes to adequately measure effectiveness. Although restorative programs were found to be significantly more effective, these positive findings are tempered by an important self-selection bias inherent in restorative justice research. A possible method of addressing this problem, as well as directions for future research, are provided.

555 citations

Journal ArticleDOI
TL;DR: The conceptual model is found useful in elucidating important relationship management areas, highlighting not only the outsourcing relationship's contractual, social, and economic characteristics, but also many additional elements found to have relevance in practice.
Abstract: A growing concern among the organisations who are actively involved in Information Technology outsourcing is post-contract management and the ensuing development of what many practitioners and scholars have coined the ‘outsourcing partnership’. This paper integrates theoretical concepts from organisation theory, social exchange theory, and relational contract theory with existing research on IT outsourcing, to develop a conceptual model for understanding the relationship. In particular, we conceptually elaborate and then address the relationship's properties — identified as interactions, contract, context, structure, and behavioural dimensions. Preliminary exploratory research into relationship practice in twelve organisations involved in outsourcing presents some interesting findings that advance the thinking about the outsourcing relationship. We found the conceptual model useful in elucidating important relationship management areas, highlighting not only the outsourcing relationship's contractual, social, and economic characteristics, but also many additional elements found to have relevance in practice.

485 citations

MonographDOI
12 May 2010
Abstract: For many, markets are the most efficient way in general to organize production and distribution in a complex economy. But what about those markets we might label noxious--markets in addictive drugs, say, or in sex? In Why Some Things Should Not Be for Sale, philosopher Debra Satz takes a penetrating look at those commodity exchanges that strike most of us as problematic. What considerations, she asks, ought to guide the debates about such markets? Satz contends that categories previously used by philosophers and economists are of limited use in addressing such markets because they are assumed to be homogenous. Accordingly, she offers a broader and more nuanced view of markets--one that goes beyond the usual discussions of efficiency and distributional equality--to show how markets shape our culture, foster or thwart human development, and create and support structures of power. Nobel Laureate Kenneth J. Arrow calls this book "a work that will have to be studied and taken account of by all those concerned by the role of the market as compared with other social mechanisms." Available in OSO:

369 citations

Journal ArticleDOI
TL;DR: A survey of all police departments serving cities of 50,000 people or more provides the first comprehensive national data on U.S. police paramilitary units (PPUs).
Abstract: This paper examines overlooked developments in contemporary policing: the growth in the number of, and a significant shift in the character of. United States police paramilitary units (PPUs). A survey of all police departments serving cities of 50,000 people or more provides the first comprehensive national data on PPUs. Findings document a rise in the number of PPUs, an escalation in their level of activity, a normalization of these units into mainstream policing, and a direct link between PPUs and the U.S. military. These findings reflect the aggressive turn many law enforcement agencies are assuming behind the rhetoric of community and problem-oriented policing reforms.

350 citations