Law and Politics Commons^™

Split Definitive, Lawrence Baum, Neal Devins

Neal E. Devins

For the first time in a century, the Supreme Court is divided solely by political party.

On Difference And Equality, Cynthia V. Ward

Cynthia V. Ward

No abstract provided.

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

Neal E. Devins

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …

Diminished Luster In Escambia County?, Neal Devins

Neal E. Devins

No abstract provided.

Immature Citizens And The State, Vivian E. Hamilton

Vivian E. Hamilton

Citizens are born, but they are also made. How its citizens come to be—whether the educations they receive will expand or constrain their future options, whether the values they assimilate will encourage or dissuade their civic engagement, etc.—fundamentally concerns the state. Through the power it wields over a vast range of policymaking contexts, the state can significantly influence (or designate those who will influence) many of the formative experiences of young citizens. Young citizens’ accumulated experiences in turn can significantly influence the future mature citizens they will become. The state insufficiently considers the cumulative nature of its citizens’ development, however. …

The Senate: Out Of Order?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Due to the routine use of the filibuster and related devices, today’s Senate operates as a supermajoritarian body. This Symposium Article considers whether this supermajoritarian aspect of the Senate renders it dysfunctional and, if so, what can be done about it. I contend that the Senate is indeed broken. Its current supermajoritarian features have pernicious effects. Further, and contrary to the claims of many of the Senate’s defenders, this aspect of the Senate is not part of the original design. I go on to explain why the Senate’s procedures, despite their deficiencies, have nonetheless proven resistant to reform. The impediment …

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

“Bullets Of Truth”: Julian Assange And The Politics Of Transparency, Mark Fenster

Mark Fenster

Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito

Natsu Taylor Saito

The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises jurisdiction inevitably …

The Role Of Case Complexity In Judicial Decision Making., Laura P. Moyer

Laura Moyer

The literature on ideology and decision making offers conflicting expectations about how judges’ ideology should affect their votes in cases that raise many legal issues. Using cases from the U.S. Courts of Appeals, I examine the strength of ideology as a predictor of sincere voting in single and multi-issue cases and test whether the same effect for ideology can be seen for liberal and conservative judges. For all judges, ideology yields a larger effect as the number of issues increases; however, conservative judges are much more likely than liberal judges to cast sincere votes at all levels of complexity.

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz

Bruce Ledewitz

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan

All Americans Not Equal: Mistrust And Discrimination Against Naturalized Citizens In The U.S., Alev Dudek

Alev Dudek

A Quantum Congress, Jorge R. Roig

Jorge R Roig

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

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.

The Road To Mass Democracy: Original Intent And The Seventeenth Amendment, Christopher Hoebeke

Christopher H Hoebeke

Until 1913 and passage of the Seventeenth Amendment to the United States Constitution, US senators were elected by state legislatures, not directly by the people. Progressive Era reformers urged this revision in answer to the corruption of state "machines" under the dominance of party bosses. They also believed that direct elections would make the Senate more responsive to popular concerns regarding the concentrations of business, capital, and labor that in the industrial era gave rise to a growing sense of individual voicelessness. Popular control over the higher affairs of government was thought to be possible, since the spread of information …

The Paradox Of Popular Sovereignty: An Introductory Essay, Christopher Hoebeke

Christopher H Hoebeke

No abstract provided.

Draconian Discrimination: One Man's Battle With U.S. Immigration Law For Fairness, Justice, And American Citizenship, Rachel C. Zoghlin

Rachel Claire Zoghlin

“I was born into my father’s arms,” David responded emphatically when I asked him about his relationship with his mother. David’s father, Ronald, has been his teacher, his guardian, his provider, and his support for his entire life. He taught David to be strong and gentle, proud and humble. David inherited Ronald’s kind eyes, his honest nature, his palpable presence, and his immovable strength. The first, last, and only time David met his mother was on January 23, 1965 – the day he was born. Ronald raised two children, David and his sister Roxanne, as a single parent.

When David …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Do “Tough On Crime” Politicians Win More Elections? An Empirical Analysis Of California State Legislators From 1992 To 2000, Steven A. Krieger

Steven A. Krieger

Do “tough on crime” politicians win more elections? Conventional wisdom suggests that they do. After all, who was the last public official to win an election based on a “soft on crime” platform? Correspondingly, this unjustified and widespread belief among legislators (and their strategists) makes it extremely difficult for progressive criminal justice bills to become law. There is no empirical literature, however, to support or deny this conventional political wisdom.

A regression analysis was used to answer (1) whether legislators’ election results were impacted by their voting records (based on an assigned crime score) or constituent support for a ballot …

On Equality: The Anti-Interference Principle, Donald J. Kochan

Donald J. Kochan

This Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan

Donald J. Kochan

Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis …

The Citizens Were Heard, Donna M. Hughes Dr.

Donna M. Hughes

The Mirror Effect, The Law Of Attraction, And "Points Of Attraction" That Can Nurture The Evolution Of Human Consciousness, Carroy U. Ferguson

Carroy U "Cuf" Ferguson, Ph.D.

This message has several purposes. First, I want to express my immense joy that Chip Baggett and I are serving as Co-Presidents of AHP since August 16, 2009. In my view, Chip and I are long-time friends, who have a transcendent connection and synergistic energies. My desire and intent is for our co-presidency to mirror the effect(s) of synergistic collaboration as a “point of attraction” that can assist in the evolution of human consciousness across often “perceived personal and societal boundaries” (e.g., race, culture, ethnicity, class, individual and collective belief systems, and dogma). More generally, however, this message is intended …

Understanding The Prop 8 Litigation: The Scope Of Direct Democracy And Role Of Judicial Scrutiny, Ronald Steiner

Ronald L. Steiner

Once the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are …