Law Commons^™

Who Decides On Security?, Aziz Rana

Aziz Rana

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

Aziz Rana

No abstract provided.

Obama And The New Age Of Reform, Aziz Rana

Aziz Rana

No abstract provided.

Implicit Bias, Election '08, And The Myth Of A Post-Racial America, Jeffrey J. Rachlinski, Gregory S. Parks

Jeffrey J. Rachlinski

The election of Barack Obama as the forty-fourth President of the United States signals that the traditional modes of thinking about race in America are outdated. Commentators and pundits have begun to suggest that the election of a black man to the nation's highest office means that the United States has entered a post-racial era in which civil rights laws are becoming unnecessary. Although President Obama's election means that explicit, open anti-black racism has largely faded, an analysis of the campaign's rhetoric and themes suggests that unconscious racism is alive and well. Rather than suggest a retreat from traditional civil …

Barack Obama, Implicit Bias, And The 2008 Election, Jeffrey J. Rachlinski, Gregory S. Parks

Jeffrey J Rachlinski

The election of Barack Obama as the forty-fourth president of the United States suggests that the United States has made great strides with regard to race. The blogs and the pundits may laud Obama’s win as evidence that we now live in a “post-racial America.” But is it accurate to suggest that race no longer significantly influences how Americans evaluate each other? Does Obama’s victory suggest that affirmative action and antidiscrimination protections are no longer necessary? We think not. Ironically, rather than marking the dawn of a post-racial America, Obama’s candidacy reveals how deeply race affects judgment.

Unconscious Bias And The 2008 Presidential Election, Gregory S. Parks, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

The 2008 presidential campaign and election will be historic. It marks the first time a Black person (Barack Obama) and a woman (Hillary Clinton) have a real chance at winning the Presidency. Their viability as candidates symbolizes significant progress in overcoming racial and gender stereotypes in America. But closer analysis of the campaigns reveals that race and gender have placed enormous constraints on how these two Senators can run their candidacy. This is not surprising in light of the history of race and gender in voting and politics in America. But what is perhaps more surprising is how the campaigns …

Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Afghanistan: Prospects For Peace And Democratic Governance And The War On Terrorism, Muna Ndulo

Muna B Ndulo

No abstract provided.

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Robert C. Hockett

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

False Comfort And Impossible Promises: Uncertainty, Information Overload, And The Unitary Executive, Cynthia R. Farina

Cynthia R. Farina

The movement toward President-centered government is one of the most significant trends in modern American history. This trend has been accelerated by unitary executive theory, which provided constitutional and “good government” justifications for what political scientists have been calling the “personal” or “plebiscitary” presidency. This essay draws on cognitive, social and political psychology to suggest that the extreme cognitive and psychological demands of modern civic life make us particularly susceptible to a political and constitutional ideology organized around a powerful and beneficent leader who champions our interests in the face of internal obstacles and external threats. The essay goes on …

Deconstructing Nondelegation, Cynthia R. Farina

Cynthia R. Farina

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …

The "Chief Executive" And The Quiet Constitutional Revolution, Cynthia R. Farina

Cynthia R. Farina

No abstract provided.

Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski

Cynthia R. Farina

No abstract provided.

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

Josh Chafetz

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 …

The Unconstitutionality Of The Filibuster, Josh Chafetz

Josh Chafetz

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" …

Impeachment And Assassination, Josh Chafetz

Josh Chafetz

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. …

The Phenomenology Of Gridlock, Josh Chafetz

Josh Chafetz

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, …

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Josh Chafetz

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all. This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …

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

Josh Chafetz

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 of …

Whose Secrets?, Josh Chafetz

Josh Chafetz

No abstract provided.

The Law Of Patronage At A Crossroads, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

"We Don't Want Anybody Anybody Sent": The Death Of Patronage Hiring In Chicago, Cynthia Grant Bowman

Cynthia Grant Bowman

No abstract provided.

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

Gregory S Alexander

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 …

Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills

Jon L. Mills

This article analyzes how Florida's state election laws operated during the aftermath of the 2000 presidential election. The intersection of law and politics in this controversy was critical. Political considerations affected decisions in both the Bush and Gore camps. The aftermath of the 2000 election found the federal government, the National Conference of State Legislatures, and the State of Florida (among others) commissioning task forces and committees to investigate and suggest election reforms. Ultimately, the State of Florida passed significant election reform legislation. On May 10, 2001, Florida enacted sweeping election reform legislation entitled the Florida Election Reform Act of …

Politics And Public Sector Employees: What's Gone Wrong With The Relationship Between Ministers And Public Servants - Why It Matters, And What Needs To Be Done To Fix It, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

Is The Roberts Court Really A Court?, Eric J. Segall

Eric J. Segall

When facing a question that the law does not clearly answer, courts are generally obligated to resolve legal disputes by examining, interpreting, and applying prior positive law such as text and precedent. This Article argues that three cases decided by the Roberts Court – Gonzales v. Carhart, District of Columbia v. Heller, and Citizens United v. Federal Election Commission – exemplify the Supreme Court’s propensity for disregarding prior positive law when deciding cases. The Author contends that the Roberts Court, quite possibly like all the Supreme Courts before it, is not a “court” at all because it does not take …

Elena Kagan Can't Say That: The Sorry State Of Political Discourse Regarding Constitutional Interpretation, Neil J. Kinkopf

Neil J. Kinkopf

No abstract provided.

Combating Terrorism With The Alien Terrorist Removal Court, Jonathan Yu

Jonathan Yu

No abstract provided.