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Full-Text Articles in Law and Politics

Taxonomy Of Minority Governments, Lisa La Fornara Oct 2018

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds ...


Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei Oct 2018

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...


Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett Oct 2018

Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett

Washington and Lee Law Review Online

In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.


Special Problems For Prosecutors In Public Corruption Prosecutions, Mimi Rocah, Carrie Cohen, Steve Cohen, Daniel Cort, Bennett L. Gershman Oct 2018

Special Problems For Prosecutors In Public Corruption Prosecutions, Mimi Rocah, Carrie Cohen, Steve Cohen, Daniel Cort, Bennett L. Gershman

Pace Law Review

The focus of this panel is not so much on the academic part of McDonnell, the case law. Of course, you’ll hear the name McDonnell and we’ll talk about that.

But we’re trying to talk a little more broadly about public corruption prosecutions in general. Some of these are unique issues. You heard a little bit about them from the former people who have done them, what special unique problems are involved in them and challenges the prosecutors face and what effect, if any.


How Should Congress Respond To Mcdonnell?, David Yassky, Kathleen Clark, Allen Dickerson, Jennifer Rodgers Oct 2018

How Should Congress Respond To Mcdonnell?, David Yassky, Kathleen Clark, Allen Dickerson, Jennifer Rodgers

Pace Law Review

Discussion of question of whether McDonnell was essentially right or wrong. Should Congress act to change the McDonnell rule? Should the Supreme Court reconsider it? What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution?


How Has Mcdonnell Affected Prosecutors’ Ability To Police Public Corruption? What Are Politicians And Lobbyists Allowed To Do, And What Are Prosecutors Able To Prosecute?, Vincent L. Briccetti, Amie Ely, Alexandra Shapiro, Dan Stein Oct 2018

How Has Mcdonnell Affected Prosecutors’ Ability To Police Public Corruption? What Are Politicians And Lobbyists Allowed To Do, And What Are Prosecutors Able To Prosecute?, Vincent L. Briccetti, Amie Ely, Alexandra Shapiro, Dan Stein

Pace Law Review

The question posed to the panelists on the first panel is: How has McDonnell affected prosecutors’ ability to police public corruption? What can politicians and lobbyists do and what can prosecutors prosecute?


Primer, Samantha Conway, David Diab, Amanda Fiorilla, Eric Grossfeld Oct 2018

Primer, Samantha Conway, David Diab, Amanda Fiorilla, Eric Grossfeld

Pace Law Review

Discussion and history of public corruption statutes and the prosecution of public officials through McDonnell v. United States, 136 S. Ct. 2355 (2016).


Introduction, Mimi Rocah Oct 2018

Introduction, Mimi Rocah

Pace Law Review

On March 9, 2018, the Elisabeth Haub School of Law at Pace University hosted Public Corruption Prosecution After McDonnell, a symposium that brought together law enforcement, practitioners, academics and media that covers these cases to gain insight and input from these disparate groups. The Symposium convened three panels to discuss how McDonnell has affected prosecutors’ ability to police public corruption; to offer legislative responses to McDonnell; and to examine the inherently unique nature of public corruption prosecutions. A central aim of the day-long event was to simultaneously tackle these challenging issues while distilling complex legal analysis in a manner suitable ...


The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes Oct 2018

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Washington and Lee Law Review Online

Professor Calhoun, in his Article around which this

symposium is based, has asserted that it is permissible for citizens

to publicly argue for laws or public policy solutions based on

explicitly religious reasons.1 Calhoun candidly admits that he has

“long grappled” with this question (as have I, though he for longer),

and, in probably the biggest understatement in this entire

symposium, notes that Professor Kent Greenawalt identified this

as “a particularly significant, debatable, and highly complex

problem.”2 Is it ever. I have a position that I will advance in this

article, but I wish to acknowledge at the ...


America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin Oct 2018

America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin

Washington and Lee Law Review Online

Political and philosophical theorists have often advocated for

the exclusion of some or all religious perspectives from full

participation in politics. Such approaches create criteria—such as

public accessibility, public reason, or secular rationale—to

legitimate such exclusion. During the 1990s I argued, as an

evangelical Christian, against such exclusionary theories,

defending the rights to full and equal political participation by

evangelical Christians, traditionalist Roman Catholics, and any

others who would be restricted by such criteria.


From Eternity To Here: Divine Accommodation And The Lost Language Of Law, Nomi Stolzenberg Sep 2018

From Eternity To Here: Divine Accommodation And The Lost Language Of Law, Nomi Stolzenberg

University of Southern California Legal Studies Working Paper Series

This paper asserts that the discourse of religious accommodation has stopped making sense, and that the reason it has stopped making sense is because our terminology (including such terms as "religion," "accommodation," and "secularism") is inherited from tradition of political theological discourse that has been forgotten: the theology of divine accommodation. The paper reconstructs the content of that tradition of political theology in broad strokes, arguing that the birthplace of secularism and the birthplace of liberalism both lie here and that, once we recognize that, a number of doctrinal and conceptual puzzles can be solved, including how to define religion ...


It's Tax Not Trade (Stupid), Edward J. Mccaffery Sep 2018

It's Tax Not Trade (Stupid), Edward J. Mccaffery

Edward J McCaffery

Globalization, trade and other free market policies increase wealth. But the gains from trade are not being evenly spread among all citizens. People and politicians rage against foreigners. But it is the United States tax system, not trade, that ought to change, and wealthy Americans, not workers world-wide, who should be sharing the wealth. A nd it is the form of tax, not just its rate structure, that must reform, so that capital at last bears a meaningful share of the burden.


Fool Me Once: Regulating "Fake News" And Other Online Advertising, Abby Wood, Ann M. Ravel Sep 2018

Fool Me Once: Regulating "Fake News" And Other Online Advertising, Abby Wood, Ann M. Ravel

University of Southern California Legal Studies Working Paper Series

A lack of transparency for online political advertising has long been a problem in American political campaigns. Disinformation attacks that American voters have experienced since the 2016 campaign have made the need for regulatory action more pressing.

Platforms desire self-regulation and have only recently come around to supporting transparency regulations. While government must not regulate the content of political speech, it can, and should, force transparency into the process. We propose several interventions aimed at transparency. Most importantly, campaign finance regulators should require platforms to store and make available ads run on their platforms, as well as the audience at ...


The Operational And Administrative Militaries, Mark P. Nevitt Aug 2018

The Operational And Administrative Militaries, Mark P. Nevitt

Faculty Scholarship at Penn Law

This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the ...


Campaign Finance Transparency Affects Legislators' Election Outcomes And Behavior, Abby Wood, Christian R, Grose Aug 2018

Campaign Finance Transparency Affects Legislators' Election Outcomes And Behavior, Abby Wood, Christian R, Grose

University of Southern California Legal Studies Working Paper Series

Do audits by executive agencies impact the behavior of those audited? Does revealing negative information about candidates affect electoral results and behavior? Institutions that encourage transparency, such as campaign finance disclosure, influence mass and elite behavior. We theorize that greater transparency provides information to voters during legislative campaigns about the character of candidates, and that information affects voter and legislator behavior. The U.S. Federal Election Commission conducted random audits of 10 percent of U.S. House members in the 1970s. This FEC program is the only randomized experiment an agency has conducted on federal legislators and their electorates. We ...


Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey Aug 2018

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

Faculty Scholarship at Penn Law

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature ...


Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun Aug 2018

Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun

Washington and Lee Law Review Online

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.


What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro Aug 2018

What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro

Chicago-Kent Law Review

Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and ...


The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt Aug 2018

The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt

Chicago-Kent Law Review

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.

In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically ...


Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collins Jr. Aug 2018

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collins Jr.

Chicago-Kent Law Review

Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates ...


Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer Aug 2018

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Chicago-Kent Law Review

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For ...


The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro Aug 2018

The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro

Chicago-Kent Law Review

No abstract provided.


Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen Aug 2018

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on ...


Above Politics: Congress And The Supreme Court In 2017, Jason Mazzone Aug 2018

Above Politics: Congress And The Supreme Court In 2017, Jason Mazzone

Chicago-Kent Law Review

The Supreme Court figured prominently in the November 2016 elections because of the vacancy on the Court that resulted from the death of Justice Antonin Scalia. This Essay picks up the story by examining the place of the Supreme Court in national politics during 2017. It traces congressional efforts to respond to statutory and constitutional rulings by the Court as well as steps to regulate the operations of the Court and the work of the Justices. Although in 2017 Republicans and Democrats introduced numerous bills directed at the Court, these bills were generally modest in scope and, even so, did ...


The Consequences Of Citizens United: What Do The Lawyers Say?, Ann Southworth Aug 2018

The Consequences Of Citizens United: What Do The Lawyers Say?, Ann Southworth

Chicago-Kent Law Review

This Essay examines a polarized world of advocacy over campaign finance regulation in the Roberts Court. It considers what lawyers who filed party and amicus briefs in Citizens United v. Federal Election Commission have to say about the consequences of the decision. It shows that the lawyers generally agree about the ruling’s direct consequences but strongly disagree about whether those consequences are good or bad for the country and what lessons the public should draw. This Essay also explores the competing frames that these lawyers bring to questions about money in politics and their competing perspectives about government and ...


Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon Aug 2018

Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon

Chicago-Kent Law Review

This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work ...


Avian Jurisprudence And The Protection Of Migratory Birds In North America, Marshall A. Bowen Aug 2018

Avian Jurisprudence And The Protection Of Migratory Birds In North America, Marshall A. Bowen

St. Mary's Law Journal

Abstract forthcoming


Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby Aug 2018

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply ...


Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon Aug 2018

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo Aug 2018

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming