Law Commons^™

Altruism Trumping Privacy Hipaa, Privacy, Big Data Set Benefits, Douglas J. Henderson

DOUGLAS J HENDERSON

The United States Government must administer a publicly held cloud networked Big Data Set of Private Health Information (PHI) in order to utilize Big Data Analytics and allow free data mining of such PHI so that the health care industry can operate most cost effectively while also meeting the health care needs of the aging United States populace with the highest quality of care.

The United Nations And War In The Twentieth And Twenty-First Centuries, Robert Weiner

Robert Weiner

The United Nations was created in 1945 to prevent another world war. It was designed, as the Preamble to the Charter states, to eliminate the scourge of war. The failure to agree on a permanent UN international army meant that the UN had to improvise in dealing with wars. Peacekeeping, which is not mentioned anywhere in the UN Charter, had to be invented. This study investigates how peacekeeping has evolved through four “generations,” culminating in Unsanctioned multinational forces consisting of “coalitions of the willing.” The study also stresses how one of the greatest peacekeeping failures of the UN in the …

What's Wrong With Us Political System?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Employers United: An Empirical Analysis Of Corporate Political Speech In The Wake Of The Affordable Care Act, Elizabeth Weeks Leonard, Susan Scholz, Raquel Meyer Alexander

Elizabeth A. Weeks

Is the Patient Protection and Affordable Care Act (ACA) bad for business? Did the countries' most prominent companies game the Securities and Exchange Commission (SEC) disclosure process to make negative political statements about ObamaCare? Immediately following the ACA's enactment on March 23, 2010, a number of companies drew scrutiny for issuing SEC filings writing off millions – and in AT&T's case, one billion dollars – against expected earnings for 2010 alone, based on a single, discrete tax-law change in the ACA. Congressional and Administration officials accused the firms of being “irresponsible” and using “big numbers to exaggerate the health reform's …

When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff

Abigail R. Moncrieff

There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to …

Copyright Lawmaking And The Public Choice: From Legislative Battles To Private Ordering, Yafit Lev-Aretz

Yafit Lev-Aretz

On January 18th, 2012, the Web went dark in the largest online protest in history. Two anti-piracy Bills – The Stop Online Piracy Act (SOPA) and The Protect IP Act (PIPA) – attracted waves of opposition from the Internet community, which culminated on January 18th into an unprecedented 24-hour Web strike, followed by a decision to shelve the Bills indefinitely. This Article argues that the SOPA/PIPA protest created a new political reality in copyright lawmaking, with the tech industry becoming a very influential actor on the one hand, and social networks lowering mobilization costs of individual users on the other …

In Defense Of Taxpayer Funded Lobbying: Securing An Affirmative Right To Intergovernmental Communication, Andrew Emerson

Andrew Emerson

Recent budget gaps have driven local governments to increase their efforts to secure state and federal funding for priority projects. In reply, activists have advocated for legislative proposals that would deny municipal and county governments the right to use public funds for these purposes, arguing that taxpayer funded lobbying disfranchises individual citizens by spending tax dollars to promote spending that they oppose. Despite a long-term judicial trend that supports local governments’ right to use public funds to engage in lobbying activity, state police powers leave these entities vulnerable to activist-driven legislative initiatives. This paper argues that local governments should respond …

The Cooperative As Proletarian Corporation: Property Rights Between Corporation, Cooperatives And Globalization In Cuba, Larry Cata Backer

Larry Cata Backer

Since the 1970s, the issue of the relationship between productive property, the state and the individual has been contested in Marxist Leninist states. While China has moved to a more managerial form of relationship, states like Cuba continue to adhere to more strict principles of state control of productive property. However, in the face of recent financial upheavals and Cuba’s long effort to create alternative forms of regional economic engagement, Cuba’s approach to economic regulation has been undergoing limited change. This essay considers the form and scope of Cuban approaches to economic reorganization in the wake of the adoption of …

Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff

Abigail R. Moncrieff

There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of these puzzles. The central idea is that modern substantive rights—the rights to speech, religion, association, reproduction, and parenting—protect …

The Lawlessness Of Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …

Politics As Usual: Black Stereotypes And President Obama's Racialization, Lynnette Jenkins

Lynnette R Jenkins

President Barack Obama attempted to transcend race by running a colorblind campaign and administration. Nevertheless, the President and First Lady Michelle Obama have been racialized by media as the result of stereotyping and white supremacy. This paper will demonstrate that racism is not a relic of the past by drawing parallels between previous racist imagery and current media depictions of Barack and Michelle Obama.

Smart Growth At Century’S End: The State Of The States, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

You Say You Want A Revolution? [Review Of The Book The Other Side Of The Sixties: Young Americans For Freedom And The Rise Of Conservative Politics], Nick Salvatore

Nick Salvatore

[Excerpt] Was the New Left a premature revolution, the fruits of which must await a future set of proper conditions to develop? Or was it more a victim of a giant government conspiracy that crushed a vibrant and growing oppositional tendency? Adherents of these and similar interpretations thus can explain the demise of the New Left while protecting its image as a tribune of a people in inevitable, if slow, political motion. But a perspective less protective of the New Left might reveal more. Perhaps treatments of that era have never fully captured either the complex turnings of America's political …

In The Jungle Of Cities [Review Of The Book Harold Washington And The Neighborhoods: Progressive City Reform In Chicago, 1983-1987], Nick Salvatore

Nick Salvatore

[Excerpt] At first glance such a spatial transformation of work may seem positive, as indeed it was for the largely white work force that left the city and staffed these new positions. But left behind geographically, economically, and socially were the largely black (and to a lesser extent, Mexican) working-class residents. It was at this juncture, with jobs disappearing and the urban social structure fragmented, that black Chicago, symbolized in the person of Harold Washington, finally assumed political power. In Harold Washington and the Neighborhoods, editors Pierre Clavel and Wim Wiewel have collected a group of essays that examine the …

America Reborn? Conservatives, Liberals, And American Political Culture Since 1945, Nick Salvatore

Nick Salvatore

[Excerpt] From the perspective of the early twenty‑first century, we can chide the good professor for not carefully considering the consequences of what he wished for half a century ago. For it is clear that the force of this conservative movement in America was in fact “stronger than most of us [knew]” or could have imagined in 1950, or, indeed, in 1968. This conservative “impulse”, those “irritable mental gestures”, has largely restructured American political thinking with a force and popular approval that remains stunning to consider. The growth of the conservative movement since 1945 was also accompanied by the slow …

Faith, Politics, And American Culture [Review Of The Books Letter To A Christian Nation, Pity And Politics: The Right-Wing Assault On Religious Freedom, Faith And Politics: How The “Moral Values” Debate Divides America And How To Move Forward Together, The Compassionate Community: Ten Values To Unite America, Righteous: Dispatches From The Evangelical Youth Movement, And Believers: A Journey Into Evangelical America], Nick Salvatore

Nick Salvatore

[Excerpt] In January 2004, before a black church congregation in New Orleans, President George W. Bush commemorated Martin Luther King's birthday with a spirited promotion of his faith-based initiatives. Appropriating the slain Civil Rights leader's profession of faith, Bush proclaimed his ultimate purpose was to change "America one heart, one soul, one conscience at a time." He emphasized voluntary action by citizens (four times he extolled them as "the social entrepreneurs") and he consistency denigrated the role of government but for one critical function: providing "billions of dollars" to faith-based social-service groups. Proclaiming the values of the Christian Bible as …

Explaining The Rise Of State And Local Immigration Laws, Pratheepan Gulasekaram

Pratheepan Gulasekaram

This Article provides a systematic empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. Instead, we find systematic evidence for the significance of political contexts such as the strength of political parties in states and localities. The story we tell in this paper is both political and legal: understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena courts and commentators have traditionally ascribed to the federal government. This recognition of the political dynamics of immigration …

Emerging Economies After The Global Financial Crisis: The Case Of Brazil, Enrique Carrasco, Sean Williams

Enrique R Carrasco

Abstract Emerging economies have rebounded relatively quickly from the 2008 global financial crisis and, despite various challenges they face resulting from the European sovereign debt crisis, they face bright economic futures. While many observers have focused on China and India, Brazil is an emerging economy that has enjoyed increasing visibility. This article examines Brazil’s evolution into an emerging economy, or, given the market-based nature of the term, an emerging market economy (EME). After outlining the broadly accepted definition of an EME, we examine Brazil’s path towards becoming an EME, from the “pre-emergent” Brazil to its current status as an EME. …

The Great Recession, The Resulting Budget Shortfalls, And The Attack On Public Sector Collective Bargaining In The United States, Kenneth G. Dau-Schmidt, Winston Lin

Kenneth G. Dau-Schmidt

In this paper, we outline the recent attack on public sector unions’ power in the American economy and the accompanying changes, as well as proposed changes, in American law. We will briefly describe the impact of the recent financial crisis on the American economy, the balance sheets of American state and national governments, and the opportunism of the American plutocracy in using this crisis to propose and enact legislation to undermine the institution of collective bargaining and political proponents for the middle and lower classes. In particular, we will discuss the recent efforts in Indiana, Wisconsin, Ohio, and Michigan to …

Details: Specific Facts And The First Amendment, Ashutosh A. Bhagwat

Ashutosh Bhagwat

First Amendment theory and judicial decisions have traditionally focused their analysis primarily on the regulation and suppression of ideas, opinions, and advocacy. The great free speech disputes of the Twentieth Century have produced a robust body of law which, at least in the political sphere, gives very strong protection to such speech. But ideas and opinions are not the only sorts of information conveyed by speech. What about facts, and in particular, what about specific facts, what I call details? Cases such as New York Times v. Sullivan and its progeny discuss the proper treatment of false facts, but what …

You Are Living In A Gold Rush, Richard Delgado

Richard Delgado

This article argues that our times, characterized as they are by dreams of vast wealth, environmental destruction, and growing social inequality, resemble nothing so much as earlier get-rich-quick periods like the Gilded Age and the California gold rush. I put forward a number of parallels between those earlier periods and now and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through—even if some of our more libertarian …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

Outing-- And Ousting-- The "Hidden" Hyde: Toward Repeal And Replacement Of The Hyde Amendment, Rebecca Stewart

Rebecca K Stewart

Poorly crafted statutes have always created interpretive quandaries for judges and litigants, and these problems naturally tend to be exacerbated when substantive legislation is passed as a result of less than substantive legislative processes, such as through limitations riders to appropriations bills. However, these issues become vastly more troublesome when Congress intentionally subverts measures intended to restrain such processes. This Article examines the passage of one such rider, commonly known as the Hyde Amendment, exploring its origins and curious subtextual codification, and analyzing its life in the federal courts over more than a dozen years.

The Article argues that early …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

Mark D. Rosen

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

Sungjoon Cho

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

Informing Consent: Voter Ignorance, Political Parties, And Election Law, Christopher Elmendorf, David Schleicher

Christopher S. Elmendorf

This paper examines what law can do to enable an electorate comprised of mostly ignorant voters to obtain meaningful representation and to hold elected officials accountable for the government’s performance. Drawing on a half century of research by political scientists, we argue that political parties are both the key to good elections and a common cause of electoral dysfunction. Party labels can help rational, low-information voters by providing them with credible, low-cost, and easily understood signals of candidates’ ideology and policy preferences. But in federal systems, any number of forces may result in party cues that are poorly calibrated to …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …