Law Commons^™

Not Mere Rhetoric: On Wasting Or Claiming Your Legacy, Justice Scalia, Marie Failinger

Faculty Scholarship

The thesis of the article is that the Court’s enterprise is centered on preserving community through an ethics of warranted trust, and that Scalia’s rhetoric often rejects such an ethic. A modern democratic citizen, along with his whole community, instead finds himself in the situation of necessary trust in democratic institutions like the Supreme Court. The willingness of a political community ultimately to place its trust in authority is partially dependent on that authority’s commitment to, and skill at, creating a convincing argument. The practice of rhetoric recognizes the dynamics of a relation of trust: the rhetor must put his …

The Cracked Foundations Of The Right To Secede, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA") into law. The culmination of a six-year legislative and political struggle, BCRA works the most comprehensive change in federal campaign finance law in nearly three decades. BCRA addresses a broad range of issues, including soft money, issue-advocacy advertising, fundraising on federal property, campaign activities of foreign nationals, and penalties for violation of campaign finance laws. Enacted in the face of intense political opposition, BCRA, if it stands up in court, is a significant reform achievement.

Or is it? BCRA closely follows the main …

Presidential Power In Transitions, Jack M. Beermann

Faculty Scholarship

The transition between presidencies has long created controversies. Whether the issue is "midnight judges" or "midnight regulations," presidential action at the end of a term has long provoked scrutiny and criticism. Presidents have also raised eyebrows at the beginning of their terms when they assert their authority and try to undo what their predecessor in office left behind. More than one president has taken action aimed specifically at "midnight regulations," such as ordering a freeze on the issuance of new regulations, a review of regulations issued at the end of the prior administration and other similar action. This article looks …

Mixing Metaphors: Voting, Dollars, And Campaign Finance Reform (Review Essay), Guy-Uriel Charles

Faculty Scholarship

Reviewing, Bruce Ackerman & Ian Ayers, Voting with Dollars: A New Paradigm for Campaign Finance (2002)

Agenda Power In Brazil’S Camara Dos Deputados, 1989-98, Octavio Amorim Neto, Gary W. Cox, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Why Is There So Little Money In U.S. Politics?, John M. De Figueiredo, Stephen Ansolabehere, James M. Snyder Jr.

Faculty Scholarship

No abstract provided.

Placing The Adoptive Self, Carol Sanger

Faculty Scholarship

[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption – with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course – birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of …

What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault

Faculty Scholarship

My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …