Social and Behavioral Sciences Commons^™

After Citizens United: Extending The Liberal Revolution To The Multinational Corporation, Daniel J.H. Greenwood

Daniel J.H. Greenwood

This Article proposes several routes to reverse Citizens United, the Supreme Court case holding that corporate campaign spending is “speech” protected by the First Amendment.

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values.

The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights …

“To Promote The General Welfare” Addressing Political Corruption In America, Bruce M. Owen

Bruce Owen

Systemic (but lawful) political corruption reduces well-being and equity in America. Madisonian democracy is no longer capable of containing such corruption. Proposals currently on the table to stem corruption are unlikely to be effective and tend to undermine basic rights. This essay describes a new approach—regulating the output of corrupted legislative and administrative processes, rather than the inputs. Providing for substantive ex post review of direct and delegated legislation would be far more protective of the “general welfare” of the People than other reforms, while no more or less difficult to implement. Supporting an umpire proposal may be a dominant …

Law, Fugitive Capital, And Karl Polanyi's The Great Transformation, Walter J. Kendall Lll

Walter J. Kendall lll

No abstract provided.

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the Supreme Court's …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

Jonathan C. Lipson

This paper uses “institutional analysis”—the study of the relative capacities of markets, courts, and regulators—to make three claims about financial crises.

First, financial crises are increasingly a problem of “regulatory displacement.” Through the ad hoc rescues of 2008 and the Dodd-Frank reforms of 2010, regulators displace market and judicial processes that ordinarily prevent financial distress from becoming financial crises. Because regulators are vulnerable to capture by large financial services firms, however, they cannot address the pathologies that create crises: market concentration and complexity. Indeed, regulators may inadvertently aggravate these conditions through resolution tactics that consolidate firms, and the volume and …

Revisiting Curd V. Mosaic Fertilizer, Llc. A Perversion Of Private Standing Under Section 376.313 Of Florida’S Pollution Discharge Prevention And Recovery Act, Levi L. Wilkes

Levi L Wilkes

No abstract provided.

"Authoritarian Constitution Making: The Role Of The Military In Latin America", Gabriel L. Negretto

Gabriel L. Negretto

During the twentieth century, military dictatorships produced the largest number of authoritarian constitutions in Latin America. Why would military rulers invest time and resources in drafting constitutions? I argue that military leaders engage in constitution making to introduce more effective transformations of the political order during their rule and to have influence over the functioning of democracy after leaving power. However, in order to achieve all these goals, military dictators must be able to mobilize popular and partisan support for the authoritarian regime. Since this condition is rarely met, military rulers often fail in their constitution making strategy. I provide …

Table Annexed To Article: Counting Words In The Federalist, Peter Aschenbrenner

Peter J. Aschenbrenner

Word counts for each of the eighty-five articles published by Publius, the (collective) pseudonym of John Jay, Alexander Hamilton and James Madison, are surveyed. The 189,497 words are also broken down by author. The effort is ancillary to a project fixing the semantic values of ‘constitution’, ‘federal’ and ‘republic’ throughout the Early Republic (=1787 through 1857).

The Construction Of Morals, Daniel L. Chen, Susan Yeh

Susan Yeh

When do policies generate expressive or backlash effects? Recent economic models suggest that where a proscribed activity is prevalent, permissive laws liberalize attitudes toward partakers while increasing utility. The opposite occurs in communities where the proscribed activity is rare. To test these predictions, we randomize data entry workers to transcribe newspaper summaries of liberal or conservative court decisions about obscenity. We find that liberal obscenity decisions liberalize individual and perceived community standards and increase utility. Yet religious workers become more conservative in their values, identify as more Republican, view community standards as becoming more liberal, and report lower utility. Workers …

Public Reason As Higher Law, Gordon D. Ballingrud

Gordon D Ballingrud

This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law …

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

Tom Ginsburg

We like to think that constitutions are expressions of distinctly national values, speaking for “We the People.” This is especially true of constitutional preambles, which often recount distinct events from national history and speak to national values. This article challenges this popular view by demonstrating the global influences on constitutional preambles. It does so using a new set of tools in linguistic and textual analysis, applied to a database of most constitutional preambles written since 1789. Arguing that legal language can be analogized to memes or genetic material, we analyze “horizontal” transfer of language across countries and “vertical” transfers within …

Unlimited Government: When Conservative Efforts To Regulate Women’S Bodies Reach Beyond The Grave, David R. Quintanilla

David R Quintanilla

In Texas, a women may not choose to die without interference from the state government. In a conservative state that publicly promotes individual rights and small government, a women may lose even her constitutional right to die by virtue of being pregnant. This was made blatantly and painfully clear in 2013 by the tragic story of Marlise Munoz. Her story is both heartbreaking and confusing for those that are not familiar with Texas death legislation. In reality, the drama that unfolded after Marlise died, was unnecessary and unconstitutional. Using Marlise's tragic story as the background, this article displays that the …

The Weaknesses Of Criticism Against Supermajority, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

The article critically examines the objections that professors Guillermo Jiménez, Pablo Marshall and Fernando Muñoz have made to the exceptional legislative supermajority rule, defended by Sergio Verdugo in a prior paper of 2012. The objections relies in a biased conception of democracy and political equality. Their arguments conduct to a naïve position that prevents the evaluation of supermajorities in an instrumental way. Verdugo defends the idea that legislative supermajorities are useful given certain conditions and under certain cases.

Supermayorías A Nivel Legislativo. Los Problemas Del Debate Y Una Propuesta Metodológica, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

Se analiza el debate institucional relativo a si deben o no permanecer los quórums legislativos súper-mayoritarios (esto es, aquellos mayores a la mayoría simple) en la Constitución. El autor critica la manera en que la discusión ha tenido lugar desde la perspectiva académica. Luego, revisa los alcances y límites de los argumentos favorables a las supermayorías, defendiendo la idea de que ellas pueden servir de forma instrumental algunos fines legítimos que son compatibles con la democracia. Las implicancias de este trabajo alcanzan a algunas leyes orgánicas constitucionales y, también, a las leyes de quórum calificado, a las que se les …

Justice Stewart Meets The Press, Keith Bybee

Keith J. Bybee

Among the Supreme Court Justices who have articulated distinctive views of free expression, Justice Potter Stewart alone placed particular emphasis on the First Amendment's protection of a free press. Drawing upon the lessons of history, the plain language of the Constitution, the political events of his day, and his own personal experience, Stewart argued that the organized news media should be considered an essential part of the checks-and-balances competition between the legislative, executive, and judicial branches of the federal government. Stewart’s emphasis on the special structural function of the established press placed him at odds with most of his colleagues …

Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter Aschenbrenner

Peter J. Aschenbrenner

Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices underlying various clauses. However, no delegate had access to the official journal of the constitutional convention.

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ In The Federalist Papers: Semantic Values Surveyed, Peter Aschenbrenner

Peter J. Aschenbrenner

The eighty-five Federal Papers (authors James Madison and Alexander Hamilton; John Jay contributed five) are justifiably famous as elaborations of constitutional structure and text, sans citation to the convention, understandably, since secrecy imposed by Standing Order on May 28th was continued indefinitely (at the pleasure/non-action of Congress) on September 17th. Counts on semantic value/s of ‘constitution’ and ‘constitutional’ are surveyed.

A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter Aschenbrenner

Peter J. Aschenbrenner

Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.

Table Annexed To Article: Introducing Constitutional Text Units, Peter Aschenbrenner

Peter J. Aschenbrenner

The traditional citation format for reference to specific passages in the federal constitution does not account for the order in which text was added, changed or deleted; a new citation format is proposed, called ‘Constitutional Text Units’; Madison’s June, 1789 suggestion for maintaining a coherent presentation is explained and defended.

La Objeción Democrática A Los Límites Materiales De La Reforma Constitucional, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

En este ensayo el autor argumenta que las teorías de algunos constitucionalistas chilenos que justifican la imposibilidad de modificar la Constitución de acuerdo a límites materiales derivados especialmente del Derecho (y jurisprudencia) Internacional, es contraria a la libre deliberación que debiera existir en nuestra democracia constitucional.

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

What’S Age Got To Do With It? Supreme Court Appointees And The Long Run Location Of The Supreme Court Median Justice, Matthew L. Spitzer

Matthew L Spitzer

For approximately the past 40 years Republican Presidents have appointed younger Justices than have Democratic Presidents. Depending on how one does the accounting, the average age difference will vary, but will not go away. This Article posits that Republicans appointing younger justices than Democrats may have caused a rightward shift in the Supreme Court. We use computer simulations to show that if the trend continues the rightward shift will likely increase. We also to produce some very rough estimates of the size of the ideological shift, contingent on the size of the age differential. In addition, we show that the …

Table Annexed To Article: Detailed Breakdown Of Note-Takers In Farrand As Extracted From Farrand’S Records Vols. 1 And 2, Peter Aschenbrenner

Peter J. Aschenbrenner

Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.

Table Annexed To Article:The Colours Of The Constitution: More On Deep Structure And Logics Anterior, Peter Aschenbrenner

Peter J. Aschenbrenner

The colours of the Early Constitution, broken down into Philadelphia and Corrective Constitutions, and further subdividable, reveal our first glimpse of the deep structure of constitutional texts. An introduction to constitutional logic – or at least a presentation of the effects of its deployment in venue – demonstrates the divide between crafting responsibilities and disabilities, a divide taken seriously by text writers.

The Colours Of The Constitution: More On Deep Structure And Logics Anterior, Peter Aschenbrenner

Peter J. Aschenbrenner

The colours of the Early Constitution, broken down into Philadelphia and Corrective Constitutions, and further subdividable, reveal our first glimpse of the deep structure of constitutional texts. An introduction to constitutional logic – or at least a presentation of the effects of its deployment in venue – demonstrates the divide between crafting responsibilities and disabilities, a divide taken seriously by text writers.

Hamilton And Madison Deploy ‘Necessary’ In Works Dated To 1787/88, 1790/91 And 1817-36, Peter Aschenbrenner

Peter J. Aschenbrenner

In this first of three articles, the semantic values of ‘necessary’ are separated into two groups, beginning with The Federalist Papers, with the focus being on the works of Alexander Hamilton and James Madison. In the second tranche of works, their efforts – now as opponents – in the bank bill debate are examined; in the third, given Hamilton’s death in 1804, only Madison’s words are examined. Like ‘constitution,’ ‘necessary’ also offers competing values at the quantum level of analysis. Three different values are discoverable.