Law Commons^™

Taking Care Of John Marshall's Political Ghost, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Conciliatory Institutions And Constitutional Process In Post-Conflict States, Donald L. Horowitz

Faculty Scholarship

There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. The first relates to the best configuration of institutions to adopt in order to ameliorate the problem of the intergroup conflict. The second concerns the process most apt to produce the best configuration of institutions, whatever it might be. The first question is unanswered because there is a dispute among scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict. Constitutional processes have not generally been geared to yield coherent exemplars of either configuration in …

Agenda Power In The Italian Chamber Of Deputies, 1988-2000, Gary W. Cox, William B. Heller, Mathew D. Mccubbins

Faculty Scholarship

We find strong evidence that governing coalitions in Italy exercise significant negative agenda powers. First, governing parties have a roll rate that is nearly zero, and their roll rate is lower than opposition parties’ roll rates, which average about 20% on all final passage votes. Second, we find that, controlling for distance from the floor median, opposition parties have higher roll rates than government parties. These results strongly suggest that governing parties in Italy are able to control the legislative agenda to their benefit. We also document significantly higher opposition roll rates on decree-conversion bills and budget bills that on …

Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley

Faculty Scholarship

Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the “object and purpose” of the treaty until such time as it makes clear its intent not to become a party …

Self-Execution And Treaty Duality, Curtis A. Bradley

Faculty Scholarship

The Supremacy Clause of the U.S. Constitution states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the "supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v. Neilson, however, it has been understood that treaty provisions are enforceable in U.S. courts only if they are "self-executing." The legitimacy and implications of this self-execution requirement have generated substantial controversy and uncertainty among both courts and commentators. This Article attempts to clear up some of the conceptual confusion relating to the self-execution doctrine and, …

Time For A Twenty-First Century Justice Department, Samuel W. Buell

Faculty Scholarship

This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season. The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools of …

The Scope Of Executive Power In The Twenty-First Century: An Introduction, Robert D. Sloane

Faculty Scholarship

This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of …

Anti-Corruption Principle, The, Zephyr Teachout

Faculty Scholarship

There is a structural anti-corruption principle, akin to federalism or the separation-of-powers principle, embedded in the Constitution. The Constitution was designed, in large part, to protect against corruption. This structural principle - like the other structural principles - should inform how judges "do" modern political process cases. This paper documents the corruption concerns at the Constitutional convention in detail. It then examines how the modern Supreme Courts' conception of corruption is fractured and ahistorical, and has led to an incoherent jurisprudence. Instead of starting with Buckley v. Valeo, as so many modern cases do, the Court should return to the …

Vote-Trading In International Institutions, Ofer Eldar

Faculty Scholarship

There is evidence that countries trade votes among each other in international institutions on a wide range of issues, including the use of force, trade issues and elections of judges. Vote-trading has been criticized as being a form of corruption, undue influence and coercion. Contrary to common wisdom, however, I argue in this paper that the case for introducing policy measures against vote-trading cannot be made out on the basis of available evidence. This paper sets out an analytical framework for analyzing vote-trading in international institutions, focusing on three major contexts in which vote-trading may generate benefits and costs: (1) …

For Whom The Tel Tolls: Can State Tax And Expenditure Limits Effectively Reduce Spending?, Thad Kousser, Mathew D. Mccubbins, Ellen Moule

Faculty Scholarship

Can voters stop state governments from spending at high rates through the enactment of tax and expenditure limits (TELs), or do these laws become dead letters? We draw upon the principal-agent literature to theorize that TELs – one of the most frequent uses of the initiative process across the country – may be circumvented by the sorts of elected officials who would inspire their passage.

In order to investigate our claim, we conduct an event study. First, we test for the effectiveness of TELs across states using a differences-in-differences model. Second, we dissect our treatment variable using different legal provisions …

Reclaiming Egalitarianism In The Political Theory Of Campaign Finance Reform, Frank Pasquale

Faculty Scholarship

No abstract provided.

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Faculty Scholarship

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these state-based reform options. Categorically rejecting all state-based reform is …

Brief Comments On An Intermediate Position, Kent Greenawalt

Faculty Scholarship

I am going to start with some clarifications about how I see this topic. Some of what I say may be a bit repetitive, but I think it can be helpful. I do not see this subject as mainly about the force of the Establishment Clause. With Judge McConnell, I think there is a big difference between promoting a religious position, let's say, which I think teaching creationism is, and deciding some moral or political issue based on a religious judgment, such as whether there should be restrictive abortion law. And I do not think this is a question of …

Lobbying And Campaign Finance: Separate And Together, Richard Briffault

Faculty Scholarship

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …