Law Commons^™

A Question Of Justice: The Wto, Africa, And Countermeasures For Breaches Of International Trade, 38 J. Marshall L. Rev. 1153 (2005), Nsongurua J. Udombana

UIC Law Review

No abstract provided.

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Faculty Articles and Other Publications

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations--details closely related …

The Fourth Amendment And Terrorism, John Burkoff

Articles

The important questions we need to ask and to answer B in the perilous times in which we live B is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that …

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Michigan Journal of Race and Law

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. …

The 527 Problem ... And The Buckley Problem, Richard Briffault

Faculty Scholarship

In the world of campaign finance, 2004 was without a doubt the year of the 527 organization. No other aspect of campaign financing received as much press coverage or public attention as the rise of the 527s. Expenditures by 527s – named after the section of the Internal Revenue Code under which they are organized – active in federal elections amounted to at least $405 million, accounting for more than one-tenth of total federal election spending and perhaps twenty to twenty-five percent of spending in the presidential campaign. Federal Election Commission ("FEC") Chairman Scott E. Thomas recently observed that "[there …

The Mccain-Feingold Coordination Rules: The Ongoing Program To Keep Politics Under Control, Robert F. Bauer

Fordham Urban Law Journal

The article begins with a brief introduction to McCain-Feingold which restricts "coordination" and intends to enforce limits on contributions to candidates and parties. It then goes through a history of coordination. It then goes through some aspects of McCain-Feingold and concludes by stating the aftermath of McCain-Feingold and how its rules are meant to provide order to politics.

Toward A Small Donor Democracy: The Past And Future Of Incentive Programs For Small Political Contributions, Thomas Cmar

Fordham Urban Law Journal

The author begins by stating the importance of monetary contribution to a campaign and points out that most of the money for campaigns comes in the form of large donations. It then goes the introduction of campaign contributions as federal tax credits and its effects until the repeal of the tax credit by Congress. The articles then discusses state implementation of tax credits for political contribution, and compares the effects of different state programs. The article then introduces the principle that contribution incentive programs can be part of a strategy for campaign finance reform and gives several ideas how this …

Could Terrorists Derail A Presidential Election?, Jerry H. Goldfeder

Fordham Urban Law Journal

The article begins by expressing surprise that there is no safeguard for regularly scheduled elections and that if an election would have to be cancelled or postponed it is unknown what would happen. It then discusses what happened to elections during 9/11/2001 and the lack of statutory guidance ensuing from there, and discusses how some states have addressed the problem of an affected election, and questions what would happen to the presidential election in the face of such events. It questions whether Congress should attempt to legislate for such an event and gives a suggestion for what can be done …

An Analysis Of The 2004 Nader Ballot Access Federal Court Cases, Richard Winger

Fordham Urban Law Journal

The article begins by stating that voters ability to vote for minor party candidates for presidential elections have generally been protected by federal courts as long as they have gotten some media exposure, and Ralph Nader, after not having received this protection attempted to file for injunctions in federal courts. It then goes through Naders claims and suits, including against a discriminatory number of signatures, whether out of state circulators may work, his North Carolina and Ohio write-in lawsuits. The articles conclusion is that federal courts did a poor job in deciding whether to grant Nader injunctive relief and how …

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

Dependence, Identity, And Abortion Politics, Robin Effron

Faculty Scholarship

No abstract provided.

The Very Idea Of A First Amendment Right Against Compelled Subsidization, Gregory Klass

Georgetown Law Faculty Publications and Other Works

At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right …

The Civil Rights Act Of 1964 And Coalition Politics, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

Professor Days began his Childress Lecture by recounting his personal experience with Jim Crow segregation. I too have such a story. I was born and raised in Hunstville, Alabama, a city that is notable, among other things, for having desegregated its public accommodations in 1962, two full years before the passage of the Civil Rights Act of 1964. The turning point in the non-violent sit-in movement in Hunstville was when a young, African- American woman was arrested with a four-month-old baby in her arms, along with a friend who was eight months pregnant. This caused some outrage and widespread press …

American Medicine And The Politics Of Race, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Straw men play a major role in the debate over racial disparity in American medicine. Most have been deployed by the disparities-denying right, but progressives intent on “outing” racism have sent forth their share. This essay flushes out the straw men while attempting to understand the competing moral premises that drive the politics of health care disparity. At bottom, arguments about the scope of disparity and discrimination in medical care are disputes about the appropriate scope of personal responsibility for life circumstances. Further research into the factors that correlate with racial differences in health care can shed light on the …

Race And The California Recall Election: A Top Ten List Of Ironies, Sylvia R. Lazos, Keith Aoki, Steven Bender

Scholarly Works

Arnold Schwarzenegger's election as governor of California in the 2003 recall campaign is rife with cruel ironies. An immigrant himself, he beat the grandson of Mexican immigrants, Lieutenant Governor Cruz Bustamante, by playing the race card, and managed to dodge allegations of his praise for Hitler as a strong leader. While the pundits say that the California recall was about angry voters lashing back at faithless, self-dealing politicians, more lurks beneath the surface. In California, racial and ethnic minorities now comprise a majority of the population, and the recall election brought barely concealed and seething schisms to the surface. Californians, …

Legal Reform: The Role Of Public Institutions And Legal Culture, Ruben J. Garcia

Scholarly Works

In this symposium held at California Western School of Law, Professor Garcia comments on the presentations of other participants and provides his own reflections about the role that legal cultures and legal institutions play in emerging democracies and in our very own.

European Union's New Role In International Private Litigation, Ronald A. Brand

Articles

No abstract provided.

Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand

Articles

Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.

This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger …

The Role Of Foreign Languages In Educating Lawyers For Transnational Challenges, Vivian Grosswald Curran

Articles

In a world in which every other country seems intent on teaching English to their youth, and in which the United States educational system does not place a high priority on teaching foreign languages, the American law student, dean and professor may doubt if foreign language knowledge is anything more than marginally helpful to law graduates. Similarly, educators at the primary school level may not be likely to assess foreign language education as warranting a greater allocation of scarce public resources.

The usefulness of foreign languages to the United States lawyer gradually has been gaining increased recognition in the profession, …

Executive Power And The Public Lands, Harold H. Bruff

Publications

No abstract provided.

The Internet And Citizen Participation In Rulemaking, Cary Coglianese

All Faculty Scholarship

Each year, regulatory agencies promulgate thousands of important rules through a process largely insulated from ordinary citizens. Many observers believe the Internet could help revolutionize the rulemaking process, allowing citizens to play a central role in the development of new government regulations. This paper expresses a contrary view. In it, I argue that existing efforts to apply information technology to rulemaking will not noticeably affect citizen participation, as these current efforts do little more than digitize the existing process without addressing the underlying obstacles to greater citizen participation. Although more innovative technologies may eventually enable the ordinary citizen to play …

National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein

Publications

No abstract provided.

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Desautels-Stein

Publications

No abstract provided.

Watchdog Or Demagogue? The Media In The Chinese Legal System, Benjamin L. Liebman

Faculty Scholarship

Over the past decade, the Chinese media have emerged as among the most influential actors in the Chinese legal system. As media commercialization and increased editorial discretion have combined with growing attention to social and legal problems, the media have gained incentives to expand their traditional mouthpiece roles in new directions. As a result, the media have emerged as one of the most effective and important avenues of citizen redress. Their role in the legal system, however, has also brought them increasingly into conflict with China's courts.

This Article examines the implications of the media's roles in the Chinese legal …

Al Capone's Revenge: An Essay On The Political Economy Of Pretextual Prosecution, Daniel C. Richman, William J. Stuntz

Faculty Scholarship

Most analyses of pretextual prosecutions – cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime – focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their "true" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to "get" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies …

Schiavo And Klein (Symposium), Evan H. Caminker

Articles

When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein,1 notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …

Judging Partisan Gerrymanders Under The Elections Clause, Jamal Greene

Faculty Scholarship

Twice in the last two decades, the Supreme Court has come within two votes of declaring partisan gerrymandering – the manipulation of district lines for partisan ends – a nonjusticiable political question. Last Term, in Vieth v. Jubelirer, Pennsylvania Democrats challenged an alleged Republican gerrymander of the state's congressional districts. Four members of the Court thought the question nonjusticiable, and one, Justice Kennedy, thought it justiciable under the Equal Protection Clause but nonetheless rejected the plaintiffs claims. Eighteen years earlier, in Davis v. Bandemer, a three-Justice plurality had held that a political group complaining of partisan gerrymandering – the Democratic …

Principles Of Law And Economics, Daniel Cole, Peter Grossman

Peter Z. Grossman

No abstract provided.

The Unconstitutionality Of Class-Based Statutory Limitations On Presidential Nominations: Can A Man Head The Women's Bureau At The Department Of Labor?, Donald J. Kochan

Donald J. Kochan

Can a man be the Director of the Women’s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women’s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article’s case study is particularly relevant today, examining just how far Congress can go to limit the discretion of …