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Full-Text Articles in Law
The Locked Gates To Tension City: The Commission On Presidential Debates, The Fec, And The Two-Party System, Tommy La Voy
The Locked Gates To Tension City: The Commission On Presidential Debates, The Fec, And The Two-Party System, Tommy La Voy
Michigan Journal of Environmental & Administrative Law
Since John F. Kennedy and Richard Nixon walked into a Chicago television studio for the first general election presidential debate in 1960, candidate debates have been a fundamental aspect of presidential campaigns and have had broader effects on society at large. The Commission on Presidential Debates (“CPD”) has been in charge of organizing the general election debates since it was created in 1987 by the Democratic and Republican parties. In its tenure, the CPD has restricted its massive platform almost every election to the Republican and Democratic candidates through the use of criteria that seemingly follow the law’s requirement of …
Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj
Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj
University of Michigan Journal of Law Reform
American democracy is more fragile today than in recent memory. As evidence of stubborn imbalances in political influence grow, so too does public skepticism concerning the relative benefits of our democratic institutions. Scholars have taken note, and two dominant camps have emerged to offer proposals for restoring democratic accountability and responsiveness. The first, like the public, identifies the flood of money into electoral politics as the primary source of our troubles, whereas the second points to political parties as the root of the crisis. More recently, however, a nascent third approach has emerged. Looking beyond the usual suspects—money in politics …
The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis
The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis
University of Michigan Journal of Law Reform
The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …
The Republic In Long-Term Perspective, Richard Primus
The Republic In Long-Term Perspective, Richard Primus
Michigan Law Review Online
Every system of government eventually passes away. That's a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of history. It is not reasonable to think that the constitutional republic we know will last forever. The question is when it will meet its end-in our lifetimes, or in our grandchildren's, or centuries later. Given the stable conditions that living Americans were socialized to expect, the dominant intuition is probably something like …
State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart
State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart
Michigan Law Review Online
Partisan gerrymandering is the process of drafting state and congressional districts in a manner that gives one political party an advantage over another. The end goal is simple: help your party win more seats or protect existing ones. The tactic is as old as the United States. In 1788, Patrick Henry convinced the Virginia state legislature to draw the 5th Congressional District to pit his rival James Madison against James Monroe. The term “gerrymander” itself is a hybrid: in 1810, democratic Governor Gerry signed a partisan redistricting plan into law—one that contained a district that infamously looked like a salamander. …
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Michigan Law Review
This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …
A Divided Nation: Political Polarization And Dispute Resolution, Lindsey Phipps
A Divided Nation: Political Polarization And Dispute Resolution, Lindsey Phipps
Pepperdine Dispute Resolution Law Journal
This article will discuss the causes and consequences of party polarization and propose that the legislative body work more collaboratively and cooperatively through direct implementation of alternative dispute resolution techniques such as negotiation and mediation in the legislative process. Part I will define political polarization, what it looks like today, its causes and its consequences. Part II will propose and explain the use of dispute resolution techniques and tactics, such as, negotiation, mediation and alternative dispute resolution to mitigate the effects of political polarization. Part III will conclude that dispute resolution techniques and tactics will mitigate the inadequacies created by …
The Posterity Project: Developing A Method For Long-Term Political Reform, Edward B. Foley
The Posterity Project: Developing A Method For Long-Term Political Reform, Edward B. Foley
Oklahoma Law Review
No abstract provided.
California Democratic Party V. Jones: Invalidation Of The Blanket Primary, Teresa Macdonald
California Democratic Party V. Jones: Invalidation Of The Blanket Primary, Teresa Macdonald
Pepperdine Law Review
No abstract provided.
Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise
Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise
Michigan Law Review
As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …
Cross-Endorsement By Political Parties: A "Very Pretty Jungle"?, Celia Curtis
Cross-Endorsement By Political Parties: A "Very Pretty Jungle"?, Celia Curtis
Pace Law Review
No abstract provided.
La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson
La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson
University of Michigan Journal of Law Reform
Every four years, observers of the presidential nomination season decry the undue influence of those states that hold their primaries first, particularly Iowa and New Hampshire. Currently, Democratic Party rules protect the position of these states. In 2008, two states disregarded party rules in order to move their primaries to a more influential position in the primary season. As punishment for disobeying the rules, the national party diluted the influence of the delegates from these states at the national convention. Legislative solutions to the problems of the current nomination process appear unlikely. Moreover, Supreme Court jurisprudence places no limits on …
Taking Politics Religiously: Can Free Exercise And Establishment Clause Cases Illuminate The Law Of Democracy?, Pamela S. Karlan
Taking Politics Religiously: Can Free Exercise And Establishment Clause Cases Illuminate The Law Of Democracy?, Pamela S. Karlan
Indiana Law Journal
Harris Lecture delivered at Indiana University School of Law-Bloomington on February 16, 2007.
Ratification Of Reapportionment Plans Drawn By Redistricting Commissions, Poonam Kumar
Ratification Of Reapportionment Plans Drawn By Redistricting Commissions, Poonam Kumar
University of Michigan Journal of Law Reform
Partisan gerrymandering is a danger that threatens the foundations of the American democratic structure. This Note argues that partisan gerrymandering must be eliminated in order to foster political competition and ensure government accountability. Without a judicial solution, redistricting commissions present a viable option to help cure the ills of partisan gerrymandering. This Note argues that automatic and mandatory state supreme court judicial review must be the process by which the redistricting plans drawn by these commissions are ratified. Automatic judicial review permits redistricting to remain a legislative task while giving the judiciary a quintessential judicial task. In addition, this Note …
The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry
The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry
University of Michigan Journal of Law Reform
On December 16, 2005, the New York Times sounded a fire alarm when it revealed that, in response to the September 11, 2001 attacks, President George W Bush had issued a secret executive order permitting the National Security Agency (NSA) to conduct warrantless surveillance on individuals to unearth nascent terrorist activity. Congress responded to the disclosure of the NSA domestic surveillance program largely by shirking its oversight duties. This Note argues that when a single party controls both the executive and the legislative branches, the fire-alarm model fails to provide sufficient congressional oversight. Short of future elections altering the balance …
A Wolf In Sheep's Clothing: Gaffney And The Improper Role Of Politics In The Districting Process, Robert A. Koch
A Wolf In Sheep's Clothing: Gaffney And The Improper Role Of Politics In The Districting Process, Robert A. Koch
University of Michigan Journal of Law Reform
The Supreme Court unanimously agrees that excessive partisan gerrymandering is unconstitutional. A plurality of the Court, however, would hold partisan gerrymandering claims to be nonjusticiable due to the lack of a judicially manageable standard. This Note synthesizes the opinions of a majority of the Court in Vieth v. Jubelirer on the precise harms of partisan gerrymandering and argues that excessive partisan gerrymandering unconstitutionally burdens the representational rights of individual voters. This Note proposes a judicially manageable standard to address that representational harm based on the Court's standard in Shaw v. Reno.
The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill
The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill
University of Michigan Journal of Law Reform
Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries …
Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn
Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn
Michigan Journal of Race and Law
This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.
Campaign Finance Reform And The Social Inequality Paradox, Yoav Dotan
Campaign Finance Reform And The Social Inequality Paradox, Yoav Dotan
University of Michigan Journal of Law Reform
The recent landmark decision by the Supreme Court in McConnell v. FEC opens the way for new and more decisive regulation of the vast amounts of private and corporate money poured into the political system. However, the theoretical grounds for campaign finance regulation - as reflected in the Court's opinion - remain highly perplexing. The purpose of the current article is to tie together the evolving constitutional principle of equality in election with modern process theory and to apply them to the field of campaign finance. The inherent tension between the stringent requirement for political equality on the one hand …
Executing The Laws Or Executing An Agenda: Usurpation Of Statutory And Constitutional Rights By The Department Of Justice, Christopher C. Sabis
Executing The Laws Or Executing An Agenda: Usurpation Of Statutory And Constitutional Rights By The Department Of Justice, Christopher C. Sabis
University of Michigan Journal of Law Reform
The Department ofJustice (DOJ) can compel individuals and entities to sacrifice their constitutional or statutory rights. The DOJ can do so through brute political force, settlements and consent decrees, selective statutory enforcement, and prosecutions that coerce future actors not to pursue goals contrary to the policy desires of the executive branch. The current regime provides few constraints on the DOJ's ability to abuse its legal authority to achieve political objectives. This unbridled power jeopardizes the rights of both opposing and third parties.
This Note examines, in a bipartisan manner, the methods the Justice Department employs that deprive opponents or third …
Barriers To Participation, Trevor Potter, Marianne H. Viray
Barriers To Participation, Trevor Potter, Marianne H. Viray
University of Michigan Journal of Law Reform
Despite the nation's founding commitment to participatory democracy, many barriers to candidate and public participation in the electoral process are damaging the public's confidence that our elections are fair and open to full participation by candidates and voters.
The nominating processes created by the two major parties mainly serve the goals of party "insiders" and the more politically extreme factions, at the expense of competition and public confidence in the two-party system. At the same time, barriers to minor party and independent candidates-closed primaries, excessive early-voter registration requirements and complicated state primary and general ballot access requirements-operate to foreclose the …
Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett
Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett
Michigan Journal of Race and Law
As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.
Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker
Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker
Michigan Journal of Race and Law
This Article explores whether alternative voting systems are compatible with the meaning of representation in the United States. Part II begins by examining the role of geographical representation and the effect it has on the ability of individuals and groups of voters to give or withhold their consent. Part III follows this inquiry by assessing the relationship between representatives and constituents under majoritarian and proportional systems to determine the consequences of moving away from geographical representation towards models designed to enhance opportunities for all voters to choose winning candidates. A description of what a "majority" is and when and how …
Stark Karst, Richard Delgado
Stark Karst, Richard Delgado
Michigan Law Review
A Review of Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion by Kenneth L. Karst
Court-Gazing, Stephen F. Williams
Court-Gazing, Stephen F. Williams
Michigan Law Review
A Review of Turning Right: The Making of the Rehnquist Supreme Court by David G. Savage and Deciding To Decide: Agenda Setting in the United States Supreme Court by H.W. Perry, Jr.
Free Speech For Me—But Not For Thee: How The American Left And Right Relentlessly Censor Each Other, Bradley L. Smith
Free Speech For Me—But Not For Thee: How The American Left And Right Relentlessly Censor Each Other, Bradley L. Smith
Michigan Law Review
A Review of Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other by Nat Hentoff
Fighting Exclusion From Televised Presidential Debates: Minor-Party Candidates' Standing To Challenge Sponsoring Organizations' Tax-Exempt Status, Gregory P. Magarian
Fighting Exclusion From Televised Presidential Debates: Minor-Party Candidates' Standing To Challenge Sponsoring Organizations' Tax-Exempt Status, Gregory P. Magarian
Michigan Law Review
This Note argues that courts should recognize minor-party presidential candidates' standing to challenge the section 50l(c)(3) tax-exempt status of organizations sponsoring televised debates that exclude minor-party candidates. Part I situates the issue within the context of the Supreme Court's standing jurisprudence and concludes that the validity of a third-party tax-status challenge by an aggrieved minor-party presidential candidate remains an open question. Part II analyzes the Second and District of Columbia Circuits' decisions and concludes that the Second Circuit's approach properly interprets the Supreme Court's standing doctrine and correctly resolves the particular arguments which both courts consider. Part III first demonstrates …
Freedom Of Speech And The Press
The Role Of The Democratic And Republican Parties As Organizers Of Shadow Interest Groups, Jonathan R. Macey
The Role Of The Democratic And Republican Parties As Organizers Of Shadow Interest Groups, Jonathan R. Macey
Michigan Law Review
This article advances a new theory to explain the relationship between political parties and interest groups. Among the as yet unanswered questions that I resolve are: (1) why many politicians -both Republicans and Democrats - develop a reputation for "party loyalty" despite the parties' inability to employ any meaningful sanctions against politicians who deviate from the party line; (2) why candidates for public office run in contested primaries when running as an independent generally would be a less costly mechanism for getting on the ballot; (3) why the two major U.S. political parties continue to attract resources from contributors and …
Affirmative Action In The Electoral Process: The Constitutionality Of The Democratic Party's Equal Division Rule, Timothy J. Hoy
Affirmative Action In The Electoral Process: The Constitutionality Of The Democratic Party's Equal Division Rule, Timothy J. Hoy
University of Michigan Journal of Law Reform
Part I of this Note traces the history of affirmative action in the Democratic Party and the events preceding adoption and implementation of the equal division rule. Part II establishes that the equal division rule is subject to constitutional review. Part III presents constitutional and state statutory challenges to the equal division rule. The Note concludes that use of the equal division rule "quota" in the delegate selection process is unconstitutional.