American Politics Commons^™

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

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For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

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Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

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Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Strict Liability's Criminogenic Effect, Paul H. Robinson

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It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

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There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank

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In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, …

Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller

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No abstract provided.

Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank

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No abstract provided.

The "Bad Man" Goes To Washington: The Effect Of Political Influence On Corporate Duty, Jill E. Fisch

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No abstract provided.

Judicial Accountability To The Past, Present, And Future: Precedent, Politics And Power, Stephen B. Burbank

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No abstract provided.

Human Rights And National Security: The Strategic Correlation, William W. Burke-White

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No abstract provided.

The Moral Exclusivity Of The New Civil Society, Dorothy E. Roberts

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No abstract provided.

The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts

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No abstract provided.

Lying To Protect Privacy, Anita L. Allen

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No abstract provided.

Immigration Policy, Liberal Principles, And The Republican Tradition, Howard F. Chang

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No abstract provided.

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael A. Fitts

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No abstract provided.

Frankenstein's Monster Hits The Campaign Trail: An Approach To Regulation Of Corporate Political Expenditures, Jill E. Fisch

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No abstract provided.

Democracy And Its Critics, Cary Coglianese

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No abstract provided.

Can Ignorance Be Bliss? Imperfect Information As A Positive Influence In Political Insitutions, Michael A. Fitts

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No abstract provided.

Retaining The Rule Of Law In A Chevron World, Michael A. Fitts

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No abstract provided.

The Federalist's Plain Meaning: Reply To Tushnet, Anita L. Allen

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No abstract provided.

Discrimination, Jobs, And Politics, Anita L. Allen

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No abstract provided.