Law Commons^™

Chapter One Foundation Limited And 2 Others V The Attorney General 2020/Ccz/0013 [2021], Florence Chumpuka, Mbaka Wadham

SAIPAR Case Review

If Zambia is to achieve gender parity and the representation of youth and persons with disabilities in politics, the Constitutional Court must be committed to: a) interpreting the Constitution in a manner which aligns with the principles and values set out in the Constitution, and b) Constitutional Court needs to offer extensive well-reasoned analysis of the Constitution within context of the laws’ purpose.

Is The Constitutional Court Fanning The Flames Of Potential Unrest? A Review Of Recent Political Cases, O'Brien Kaaba, Felicity Kayumba Kalunga, Pamela Towela Sambo

SAIPAR Case Review

The cases we discuss in this article raise fundamental questions about access to justice. Inefficient delivery of judgments, issuance of unreasoned or thinly reasoned rulings, inordinate delay in hearing matters, and awarding of unwarranted costs in public interest matters all militate against access to justice. Access to justice is important in maintaining law and order and promoting the rule of law. As US Supreme Court Judge, Stevens, stated in Bush v Gore 531 US 98 (2000), ‘It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.’ Where …

Speech, Intent, And The President, Katherine Shaw

Cornell Law Review

Judicial inquiries into official intent are a familiar feature of the legal landscape. Across various bodies of constitutional and public law-from equal protection and due process to the First Amendment's Free Exercise and Establishment Clauses, from the Eighth Amendment to the Dormant Commerce Clause, and in statutory interpretation and administrative law cases across a range of domains-assessments of the intent of government actors are ubiquitous in our law.

But whose intent matters to courts evaluating the meaning or lawfulness of government action? When it comes to statutes, forests have been felled debating the place of legislative intent. But, although the …

Constitutional Maturity, Or Reading Weber In The Age Of Trump, Josh Chafetz

Cornell Law Faculty Publications

Anxiety abounds about the state of American constitutional democracy in “the age of Trump.” A wide range of commentators have raised serious and profound questions about the resilience of our political institutions and the capacity of our current political leadership.

This Essay, written for a Constitutional Commentary symposium on “Constitutional Law in the Trump Era,” attempts to get a handle on that anxiety by taking a step back and viewing our contemporary situation through a broader lens—a lens crafted in a different time and place, but responsive to a related set of political questions.

In particular, this Essay turns to …

The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim

Cornell Law Review

This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's de facto lawmaking power, a result of its position as legal adviser for the executive-- "the judgment of [the OLC] . . . becomes the law." Moreover, the OLC "is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts--a circumstance in which OLC's advice may effectively be the final word on the controlling law." Whether …

Delegating For Trust, Edward H. Stiglitz

Cornell Law Faculty Publications

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies' expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible …

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created …

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Cornell Law Faculty Publications

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in so …

Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz

Cornell Law Faculty Publications

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.

This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness …

How People Update Beliefs About Climate Change: Good News And Bad News, Cass R. Sunstein, Sebastian Bobadilla-Suarez, Stephanie C. Lazzaro, Tali Sharot

Cornell Law Review

People are frequently exposed to competing evidence about climate change. We examined how new information alters people’s beliefs. We find that people who are not sure that man-made climate change is occurring, and who do not favor an international agreement to reduce greenhouse gas emissions, show a form of asymmetrical updating: They change their beliefs in response to unexpected good news (suggesting that average temperature rise is likely to be less than previously thought) and fail to change their beliefs in response to unexpected bad news (suggesting that average temperature rise is likely to be greater than previously thought). By …

Did Russian Cyber Interference In The 2016 Election Violate International Law?, Jens David Ohlin

Cornell Law Faculty Publications

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To …

A Complicated Alchemy: Theorizing Identity Politics And The Politicization Of Migrant Remittances Under Donald Trump's Presidency, Stephen Wilks

Cornell International Law Journal

Using law to conscript financial technology in aid of state goals is not new. Financial institutions have long been subject to myriad legal and regulatory reporting requirements designed to combat money laundering, enforce economic sanctions, support tax compliance, and interdict the financing of terrorism. Trump's particular approach to this tradition, however, seeks to capitalize on a particularly toxic convergence of race, class, economics, and globalization. America is not alone in its recent experience with surges in right wing, nationalist populism. Globalism's winds have posed challenges to those who have enjoyed the benefits of protectionist trade policies that no longer exist, …

Executive Opportunism, Presidential Signing Statements, And The Separation Of Powers, Daniel B. Rodriguez, Edward H. Stiglitz, Barry R. Weingast

Cornell Law Faculty Publications

Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion through a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not …

A Fourth Way?: Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz

Cornell Law Faculty Publications

It sounds odd when stated forthrightly, but most separation-of-powers discussions are largely inattentive to politics. Formalist theories tend to assert that the distribution of powers is set in stone; in contrast, functionalist theories tend to focus on abstract considerations of comparative institutional competence or on ossifying past practice into a "historical gloss" binding the present. Both approaches generally ignore the live political context in which the branches continually compete with one another for decision-making power.

"Pragmatic formalist" hybrids, like that proposed by Ron Krotoszynski in his contribution to the Duke Law Journal's annual administrative law symposium, while broadening the …

Unitary Innovations And Political Accountability, Edward H. Stiglitz

Cornell Law Faculty Publications

An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one …

What's It Worth? Jury Damage Awards As Community Judgments, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Property's Ends: The Publicness Of Private Law Values, Gregory S. Alexander

Cornell Law Faculty Publications

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Essay contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic nor simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are―social and political. A consequence of this conception of the human condition is that the values that constitute human …

Unaccountable Midnight Rulemaking? A Normatively Informative Assessment, Edward H. Stiglitz

Cornell Law Faculty Publications

Under a common view, the administrative state inherits democratic legitimacy from the President, an individual who is envisioned both to control administrative agencies and to be electorally accountable. Presidents' administrations continue issuing rules, however, even after Presidents lose elections. Conventional wisdom holds that Presidents use the "midnight" period of their administrations-the period between the election and the inauguration of the next President-to issue unpopular and controversial rules. Many regard this midnight regulatory activity as democratically illegitimate. Yet we have scant evidence that presidential administrations in fact issue controversial or unpopular rules during the midnight period. In this Article, I examine …

Whose Secrets?, Josh Chafetz

Cornell Law Faculty Publications

No abstract provided.

The Phenomenology Of Gridlock, Josh Chafetz

Cornell Law Faculty Publications

Assertions that our legislative process is gridlocked — perhaps even "hopelessly" so — are endemic. So many more of our problems would be fixed, the thinking goes, if only our political institutions were functioning properly. The hunt for the causes of gridlock is therefore afoot.

This brief Essay, written for the Notre Dame Law Review's 2012 "The American Congress: Legal Implications of Gridlock" Symposium, argues that this hunt is fundamentally misguided, because gridlock is not a phenomenon. Rather, gridlock is the absence of phenomena; it is the absence, that is, of legislative action. Rather than asking why we experience gridlock, …

Who Decides On Security?, Aziz Rana

Cornell Law Faculty Publications

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of "security" has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas …

Pax Arabica?: Provisional Sovereignty And Intervention In The Arab Uprisings, Asli Bâli, Aziz Rana

Cornell Law Faculty Publications

No abstract provided.

Congress's Constitution, Josh Chafetz

Cornell Law Faculty Publications

Congress has significantly more constitutional power than we are accustomed to seeing it exercise. By failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. This Article considers a number of constitutional tools that individual houses—and even individual members—of Congress, acting alone, can deploy in interbranch conflicts. Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set …

The Two Faces Of American Freedom: A Reply, Aziz Rana

Cornell Law Faculty Publications

No abstract provided.

The Unconstitutionality Of The Filibuster, Josh Chafetz

Cornell Law Faculty Publications

This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.

After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate.

Part III presents a structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" …

The Political Animal And The Ethics Of Constitutional Commitment, Josh Chafetz

Cornell Law Faculty Publications

In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some …

Impeachment And Assassination, Josh Chafetz

Cornell Law Faculty Publications

In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly - and rightly - condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal - impeachment - would be preferable. …

Justifying Subversion: Why Nussbaum Got (The Better Interpretation Of) Butler Wrong, Ori J. Herstein

Cornell Law Faculty Publications

One of the most common critiques directed at deconstructive and poststructuralist theories is that they are amoral – rejecting the validity of the very idea of norms and moral principles as grounds for justifying or criticizing political action and social structures – and that in rejecting the validity of the distinction between what is just and what is unjust, they “collaborate with evil.” By now, an almost canonical example of this common critique is found in Martha Nussbaum’s highly critical essay on the work of Judith Butler, titled The Professor of Parody.3 Here, I focus on Nussbaum’s critique and on …

Free And Fair Elections, Violence And Conflict, Muna Ndulo, Sara Lulo

Cornell Law Faculty Publications

Elections are a defining characteristic of democracy, and thus form an integral part of the democratization process. Over the past decade, electoral systems and processes have become a centerpiece of UN peacekeeping missions and post-conflict democratization projects undertaken by intergovernmental organizations and donor agencies such as World Bank and USAID. The emphasis on elections as an element of UN peacekeeping missions is linked to a shift in focus to state rebuilding (or state creation, as was the case in East Timor). Elections thus provide a means for “jump-starting a new, post-conflict political order; for stimulating the development of democratic politics; …

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Cornell Law Faculty Publications

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable.

In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …