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Articles 1 - 30 of 1285
Full-Text Articles in Law
Controlling Buyer And Seller Power: Reviving Enforcement Of The Robinson-Patman Act, Daniel A. Hanley
Controlling Buyer And Seller Power: Reviving Enforcement Of The Robinson-Patman Act, Daniel A. Hanley
Hofstra Law Review
The Robinson-Patman Act (“RPA”) is a federal law enacted in 1936. Congress’s goal in drafting this historic legislation was to protect and promote democracy and individual liberty in the United States by supporting the creation and vitality of small and independent businesses, thereby distributing power and opportunity within the U.S. political economy.This Article provides a robust defense of Congress’s goals and intentions in enacting the RPA as well as a detailed history of how the Act benefited American society when it was vigorously enforced. It concludes with thoughts on how the RPA can be used to revitalize today’s economy, thus …
Preference Conflict And Peace Studies: The Line Between Disagreement And Violence, Frederic R. Kellogg
Preference Conflict And Peace Studies: The Line Between Disagreement And Violence, Frederic R. Kellogg
Peace and Conflict Studies
Broadening the definition of conflict defines more comprehensively the condition of peace, focusing on how unresolved shared disagreements can lead to, or avoid, polarization and violence. The line between general disagreement and violent conflict lies in the adjustment of shared preferences. Matters like reproductive rights, medically assisted death, race and gender discrimination, while subject to political polarization, are open to peaceful redress through what John Dewey called the transformative continuum of inquiry, in which the crucial social response to shared problems includes dispute and conflict. Resolution of controversial social problems requires preference adjustment and habit change, often, if not always, …
Citizenship, Constitutionalism And Democracy, Daniel Fodorean
Citizenship, Constitutionalism And Democracy, Daniel Fodorean
Helm's School of Government Conference - American Revival: Citizenship & Virtue
Romania, a former communist and monarchical country, can serve as a case study regarding how different forms of government have influenced the understanding and application of citizenship. How the citizen was understood and how citizenship was acquired or lost reflects the values that have been the basis of Romanian society at every stage of its evolution since the establishment of the Romanian state, in 1859, until now. The assumption is that each of the seven constitutions that Romania had, expresses citizenship in a specific way, associated with the form of government.
The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw
The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw
Articles
In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …
An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua
An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua
Journal Articles
The Dobbs decision has been leaked. Gathered outside of New York City's St. Patrick's Old Cathedral, pro-choice protesters chant: "Not the church, not the state, the people must decide their fate."
A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: "l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you're having my baby."
Despicable but not unexpected,³ this man's comments …
Democratic Erosion And The United States Supreme Court, Jenny Breen
Democratic Erosion And The United States Supreme Court, Jenny Breen
Utah Law Review
For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …
Migrant Children And Legislation: Integrating Knowledge About Trauma Into Policy, Yolennys E. Albornoz
Migrant Children And Legislation: Integrating Knowledge About Trauma Into Policy, Yolennys E. Albornoz
Dissertations, Theses, and Capstone Projects
This study seeks to integrate some knowledge about trauma into migration policies in the U.S. regarding children. Migration is not a novel concept; it is a dynamic phenomenon that experiences continuous changes and constantly increases in numbers. Globally, the United States has been the primary destination for foreign migrants for a long time, and most of them are Latinos who cross the U.S. and Mexico border. Here, I explore how children face trauma in their home country, which forces them to migrate. Also, while they migrate and after they have migrated, exposing the three stages of trauma for migrant children. …
Saving Democracy From The Senate, David Froomkin, A. Michael Froomkin
Saving Democracy From The Senate, David Froomkin, A. Michael Froomkin
Utah Law Review
It should not be surprising that Americans say they are frustrated with their national institutions. Congress, particularly the Senate, responds poorly to the public’s needs and wants because it is increasingly unrepresentative of the electorate. Reform is difficult, however, because each state’s “equal Suffrage” in the Senate is protected by a unique constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We first argue that the constitutional proscription on reforming the Senate has been overstated, identifying a range of constitutional reform options that would be permissible despite the Entrenchment Clause. Several …
No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz
No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
First Amendment Fetishism, John M. Kang
First Amendment Fetishism, John M. Kang
Faculty Scholarship
The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:
• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium
• a White skinhead’s cross burning on the front lawn of a Black family’s house
• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …
A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey
A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey
Faculty Scholarship
The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …
The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein
The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein
Touro Law Review
Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. …
Lost In The Thicket, Brad Snyder
Lost In The Thicket, Brad Snyder
Touro Law Review
As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.
When Ballots Are Blank: Write-In’S Serving Local Government And The Implications For A Healthy And Vibrant Democracy, Thomas J. Ruter
When Ballots Are Blank: Write-In’S Serving Local Government And The Implications For A Healthy And Vibrant Democracy, Thomas J. Ruter
School of Business Student Theses and Dissertations
Our democracy depends on having a supply of candidates running for elected office, but in some instances, no one wants to run. This phenomenological study asks what the effects on a healthy and vibrant democracy are if ballots are blank and the seat is filled through write-in or appointment. Rooted in democratic theory, this study explores small, rural city elections where write-ins won election. Understudied, local governments are responsible for decisions affecting the lives of millions of people each day. Workforce scarcity, the alienation of young Americans from politics, government bashing, nasty campaigns, threats of physical harm, and other barriers …
Dobbs And Democracy, Melissa Murray, Katherine A. Shaw
Dobbs And Democracy, Melissa Murray, Katherine A. Shaw
Articles
In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …
Democratic Federalism And The Supreme Court, Keynote Address At The 2023 Ira C. Rothgerber Jr. Conference, Carolyn Shapiro
Democratic Federalism And The Supreme Court, Keynote Address At The 2023 Ira C. Rothgerber Jr. Conference, Carolyn Shapiro
University of Colorado Law Review
No abstract provided.
Keep Charitable Oversight In The Irs, Philip Hackney
Keep Charitable Oversight In The Irs, Philip Hackney
Articles
Critics are increasingly calling for Congress to remove charity regulation from the IRS. The critics are wrong. Congress should maintain charity regulation in the IRS. What is at stake is balancing power between the state, charity as civil society, and the economic order. In a well-balanced democracy, civil society maintains its independence from the state and the economic order. Removing charitable jurisdiction from the IRS would blind the IRS to dollars placed in the charitable sector increasing tax and political shelters and wealthy dominance of charities as civil society. A new agency without understanding of, or jurisdiction over, tax cannot …
Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes
Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes
Seattle University Law Review
The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …
Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer
Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer
Articles
Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …
Written Testimony Of Philip Hackney For The Hearing On Growth Of The Tax-Exempt Sector And The Impact On The American Political Landscape (U.S. House Ways & Means Subcommittee On Oversight, December 13, 2023), Philip Hackney
Testimony
In written testimony before the House Ways & Means Subcommittee on Oversight on December 13, 2023, Professor Hackney emphasized three points about tax-exempt organizations and politics: (1) a diverse nonprofit sector that fosters civic participation and engagement is a gem of the United States -- we should maintain that; (2) the IRS budget for Exempt Organizations continues to NOT be sufficient to ensure the laws are equally and fairly enforced; and (3) there are simple things the IRS could do to enforce the law that it is not doing.
Unifying Concepts: Critical Race Theory, Academic Freedom Of Speech, And Democracy, Jasmine Gonzales Rose
Unifying Concepts: Critical Race Theory, Academic Freedom Of Speech, And Democracy, Jasmine Gonzales Rose
BU Law Presentations
Poster for Jasmine Gonzales Rose's 2023 University lecture.
The Uncertain Future Of Constitutional Democracy In The Era Of Populism: Chile And Beyond, Samuel Issacharoff, Sergio Verdugo
The Uncertain Future Of Constitutional Democracy In The Era Of Populism: Chile And Beyond, Samuel Issacharoff, Sergio Verdugo
University of Miami Law Review
Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the …
Press Freedom Under Threat In Europe: Slapps And Democracy, Maya Oleary-Cyr
Press Freedom Under Threat In Europe: Slapps And Democracy, Maya Oleary-Cyr
Claremont-UC Undergraduate Research Conference on the European Union
This paper critically examines the legal systems of European countries and their relationship to press freedom, particularly the vexatious legal threats used by government officials and corporations to silence journalists. These legal threats are known as SLAPPs (strategic lawsuits against public participation) and their use has increased exponentially in the last decade. Although the issue is global, this research analyzes the issue through the lens of Greece, Italy, and Hungary. As member states, each one of these countries has an obligation to uphold the democratic standards put forth by the EU. Journalists are a vital aspect of the democratic process …
The Paradox Of The Paradox Of Democracy, Raymond H. Brescia
The Paradox Of The Paradox Of Democracy, Raymond H. Brescia
Dickinson Law Review (2017-Present)
In The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion, authors Zac Gershberg and Sean Illing argue that democracies contain the capacity for their own destruction because they promote open communication but such communication can be manipulated by authoritarian forces. They argue further that with contemporary communications technologies the descent into fascism is even more likely. The authors argue that in order to confront these threats, democratic nations must increase media literacy within the citizenry and strengthen local journalism. Given the grave nature of the threats the authors have exposed, these solutions do not appear up to …
A Fireside Chat With A Senator Sheldon Whitehouse, Roger Williams University School Of Law
A Fireside Chat With A Senator Sheldon Whitehouse, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Education And Democracy From Brown To Plyler, Nicholas Espíritu
Education And Democracy From Brown To Plyler, Nicholas Espíritu
St. John's Law Review
(Excerpt)
Judicial review has often been cast in terms of democratic legitimacy. Democratic legitimacy is often linked to whether it institutes the will of the people through majoritarian rule and whether it creates processes for reevaluation of these prior decisions by newly constituted majorities. Judicial review of majoritarian decisions has often been criticized as a overriding or circumventing of these democratic processes. Beginning with Brown v. Board of Education, the Warren Court adopted a resolution of the “counter-majoritarian difficulty” of judicial review by tacitly accepting Justice Stone’s formulation from footnote four of United States v. Carolene Products and engaging …
To Democratize Algorithms, Ngozi Okidegbe
To Democratize Algorithms, Ngozi Okidegbe
Faculty Scholarship
Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.
This Article contends that the current approach to democratization is …
Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman
Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman
Life of the Law School (1993- )
No abstract provided.
The Intersectional Origins Of Modern Feminist Legal Advocacy, Serena Mayeri
The Intersectional Origins Of Modern Feminist Legal Advocacy, Serena Mayeri
All Faculty Scholarship
Intersectionality, reproductive justice, abolitionism, LGBTQ+ liberation, and democracy defense have moved to the center of twenty-first century feminist legal thought and advocacy, with feminists of color and queer scholars and activists at the forefront. But it wasn’t always so. Or was it?
Limitation For Liberty, Riley Banker
Limitation For Liberty, Riley Banker
Helm's School of Government Conference - American Revival: Citizenship & Virtue
This paper examines how the foundational principals of life, liberty, and the pursuit of happiness are under attack in our nation today and demonstrates why protecting them through Federalism is so important.