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Prerogative And Legislator Vetoes, Elliot Louthen
Prerogative And Legislator Vetoes, Elliot Louthen
Northwestern University Law Review
Prerogative is the devolution of power to a single legislator over decisions in her district. In cities with a prerogative regime, when the city council votes on an issue or an administrative agency makes a decision concerning a specific district, decision-makers defer to that district’s legislator. This deference gives the legislator exclusive executive authority over her district. In Chicago and Philadelphia, legislators have infamously wielded prerogative and tied the practice to corruption. But in addition to corruption, prerogative gives rise to another, more pernicious issue. When applied to decisions related to affordable housing, prerogative perpetuates racial segregation through legislator vetoes. …
Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld
Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld
Northwestern University Law Review
It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of …
A Criminal Law We Can Call Our Own?, R A Duff
A Criminal Law We Can Call Our Own?, R A Duff
Northwestern University Law Review
This Essay sketches an ideal of criminal law—of the kind of criminal law that we can call our own as citizens of a democratic republic. The elements of that ideal include a republican theory of liberal democracy, as the kind of polity in which we can aspire to live; an account of the role of criminal law in such a polity, as defining a set of public wrongs and providing an appropriate formal, public response to the commission of such wrongs through the criminal process of trial and punishment; and a discussion of how the citizens of such a polity …
Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld
Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld
Northwestern University Law Review
This Essay links criminal theory to democratic political theory, arguing that the view of criminal law and procedure known as “reconstructivism” shares a common root with certain culturally oriented forms of democratic theory. The common root is the valorization of a community’s ethical life and the belief that law and government should reflect the ethical life of the community living under that law and government. This Essay then specifies three principles that are entailed by the union of democracy and reconstructivism and that should therefore characterize a democracy’s approach to criminal justice: the “moral culture principle of criminalization,” the “principle …
Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman
Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman
Northwestern University Law Review
Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and …
Fragmentation And Democracy In The Constitutional Law Of Punishment, Richard A. Bierschbach
Fragmentation And Democracy In The Constitutional Law Of Punishment, Richard A. Bierschbach
Northwestern University Law Review
Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy. But the relationship of such principles to democracy in criminal punishment has received less attention. This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice. On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern. At the same time, the potentially positive aspects of fragmentation can backfire, …
Criminal Justice That Revives Republican Democracy, John Braithwaite
Criminal Justice That Revives Republican Democracy, John Braithwaite
Northwestern University Law Review
Criminal justice seems an implausible vehicle for reviving democracy. Yet democracy is in trouble. It is embattled by money politics and populist tyrannies of majorities, of which penal populism is just one variant. These pathologies of democracy arise from democracy having become too remote from the people. A new democracy is needed that creates spaces for direct deliberative engagement and for spaces where children learn to become democratic. A major role for restorative justice is one way to revive the democratic spirit through creating such spaces.
The Democratic First Amendment, Ashutosh Bhagwat
The Democratic First Amendment, Ashutosh Bhagwat
Northwestern University Law Review
Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …
Ideals Without Illusions: Corruption And The Future Of A Democratic North Africa, Juliet Sorensen
Ideals Without Illusions: Corruption And The Future Of A Democratic North Africa, Juliet Sorensen
Northwestern Journal of Human Rights
In the Arab Spring of 2011, corruption was high on the list of grievances presented by protesters, and rightfully so: countries in the Middle East and North Africa region have been dogged by corruption for years. Concerns about the quality of governance, including the protection of rights, the rule of law and corruption have long been voiced in tandem with calls for democracy. While the absence of corruption alone does not engender democracy, true democracy cannot exist where corruption thrives. This article analyzes the progress that three countries affected by the Arab SpringEgypt, Tunisia, and Moroccohave made toward democracy over …
Labor Rights And The Democracy Movement In Iran: Building A Social Democracy, Farhad Nomani, Sohrab Behdad
Labor Rights And The Democracy Movement In Iran: Building A Social Democracy, Farhad Nomani, Sohrab Behdad
Northwestern Journal of Human Rights
Since the early days of the twentieth century, the Iranian working class has suffered the consequences of an undemocratic, repressive capitalist state. With the large and growing size of the Iranian working class, no viable and sustainable democratization process can take shape without independent labor organizations and without the working class's participation in the political arena. In the post-presidential election protest of 2009, one of the critical weaknesses of the Green Movement in its quest for democracy was that the working class was not massively and distinctly present among the middle-class women, men, and youth. Nevertheless, in the current struggle …
Can African States Conduct Free And Fair Presidential Elections?, Edwin Odhiambo Abuya
Can African States Conduct Free And Fair Presidential Elections?, Edwin Odhiambo Abuya
Northwestern Journal of Human Rights
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Why Is International Law Binding?, Anthony D'Amato
Why Is International Law Binding?, Anthony D'Amato
Faculty Working Papers
Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …
The Missing Link Between Self-Determination And Democracy: The Case Of East Timor, Hua Fan
The Missing Link Between Self-Determination And Democracy: The Case Of East Timor, Hua Fan
Northwestern Journal of Human Rights
This article uses the U.N.'s recent national-building efforts in to illustrate the importance of the link between self-determination and democracy. It argues that democracy is an indispensable complement for self-determination, offers three reasons, and uses the pre- and post-independence experiences of to illustrate these three points. First, democracy can help identify whether a group qualifies for the right to self-determination and whether and how it wants to exercise that right. Second, democracy can better incarnate and individualize the group right of self-determination and ensure that the respect for the rights and well-being of each individual serves as a guiding principle …
The Transatlantic Dialogue On Africa, Jan Wouters
The Transatlantic Dialogue On Africa, Jan Wouters
Northwestern Journal of Human Rights
No abstract provided.
Freedom Or Theocracy?: Constitutionalism In Afghanistan And Iraq, Hannibal Travis
Freedom Or Theocracy?: Constitutionalism In Afghanistan And Iraq, Hannibal Travis
Northwestern Journal of Human Rights
No abstract provided.
Commentary By Ambassadors To The United Nations, Henry Bienen, Feisal Istrabadi, Jan Wouters, Sir David Hannay
Commentary By Ambassadors To The United Nations, Henry Bienen, Feisal Istrabadi, Jan Wouters, Sir David Hannay
Northwestern Journal of Human Rights
No abstract provided.
Constructing Democracy In The North American Free Trade Area, Alexandra Maravel
Constructing Democracy In The North American Free Trade Area, Alexandra Maravel
Northwestern Journal of International Law & Business
This paper focuses on the implementing mechanisms, examining their character and implications for regional government as the possibility of a hemisphere-wide free trade area looms across the Americas. The essential problem is how to define the political framework that Canada, Mexico, and the United States are creating. It is not clear that it is an inherently demo- cratic regime. The regime, created to oversee the complex system of trading rules, is arguably (and paradoxically) necessary to ensure "free" trade, but it may undermine the very emergent regional democ- racy it seeks to empower.