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When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan
When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan
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The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …
Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher
Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher
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In this article, Professor Orentlicher explores free speech and federalism issues arising from FDA regulation of off-label uses and off-label marketing of drugs. In light of the FDA's desire to respect state government authority, together with other considerations discussed in this article, he argues for the rejection of the analysis of the Caronia court and to give the FDA significant leeway in its regulation of off-label marketing.
James Wilson In The State House Yard: Ratifying The Structures Of Popular Sovereignty, Ian C. Bartrum
James Wilson In The State House Yard: Ratifying The Structures Of Popular Sovereignty, Ian C. Bartrum
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There is an excellent (and rapidly growing) literature examining the influence of James Wilson's Scottish philosophical education on his later political ideas. In this Article, Professor Ian Bartrum makes two contributions to that scholarship. First, he reexamines several of the most important Scottish moral sentimentalists with a particular focus on the specific ontological and epistemological accounts that influenced Wilson. Second, he dissolves the seeming contradictions in Wilson's political thought by showing that, while he understood that representative bodies were essential to legitimate government, he nonetheless distrusted these institutions because they work to obscure, or even subvert, their members' individual experience …
Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher
Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher
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In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.
Shrinking The Post-Plenary Power Problem, Michael Kagan
Shrinking The Post-Plenary Power Problem, Michael Kagan
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In this essay, Professor Michael Kagan responds to Professor Matthew J. Lindsay's article, Disaggregating “Immigration Law.” Professor Kagan posits a majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. He argues so long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. He concludes the importance of Professor Lindsay’s intervention …