Law Commons^™

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

The Punishment/El Castigo: Undocumented Latinos And U.S. Immigration Processing, Ruth Gomberg-Munoz

Ruth Gomberg-Munoz

The Presidency And The Meaning Of Citizenship·, Malinda L. Seymore

Malinda L. Seymore

No abstract provided.

The Presidency And The Meaning Of Citizenship, Malinda L. Seymore

Malinda L. Seymore

This Article uses the issue of presidential qualification as a vehicle to examine the meaning of citizenship today, arguing that the Natural-Born Citizen Clause perpetuates a second-class citizenship that is inappropriate and inapposite in modern American society. Upon this premise, this Article proposes that a constitutional amendment may be necessary since the argument that the Fourteenth Amendment serves as an implicit repeal of the Natural-Born Citizen Clause has proved historically insufficient. Part II of this Article examines the origins of the constitutional requirement that the President be a "natural born Citizen" and discusses the unsuccessful attempts to amend this requirement. …

Deferred Action, Supervised Enforcement Discretion, And The Rule Of Law Basis For Executive Action On Immigration, Anil Kalhan

Anil Kalhan

In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition …

Integration Of And The Potential For Islamic Radicalization Among Ethnic Turks In Germany, Alev Dudek

Alev Dudek

In spite of ongoing improvements, integration of ethnic Turks in Germany remains a challenge from the dominant culture perspective, whereas a deeply ingrained institutional and everyday racism and the lack of legal protection against discrimination pose a challenge to full participation of ethnic Turks from another perspective. In an increasingly xenophobic Europe, particularly Germany, an increase in potential for religious and nationalist radicalization in different groups including ethnic Turks is becoming more and more evident. This increase in radical attitudes is not necessarily caused by a lack of integration, as evidenced among well-integrated individuals.

In view of recent developments toward …

Fighting Over The Founders: How We Remember The American Revolution, Andrew Schocket

Andrew M Schocket

The American Revolution is all around us. It is pictured as big as billboards and as small as postage stamps, evoked in political campaigns and car advertising campaigns, relived in museums and revised in computer games. As the nation’s founding moment, the American Revolution serves as a source of powerful founding myths, and remains the most accessible and most contested event in U.S. history: more than any other, it stands as a proxy for how Americans perceive the nation’s aspirations. Americans’ increased fascination with the Revolution over the past two decades represents more than interest in the past. It’s also …

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 Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Christopher Elmendorf, Douglas Spencer

Douglas M. Spencer

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the …

Anonymous Speech And Section 527 Of The Internal Revenue Code, Donald B. Tobin

Donald B. Tobin

No abstract provided.

America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Robert L Tsai

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion--the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines …

Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas Spencer, Abby Wood

Douglas M. Spencer

What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United about half of the states banned corporate independent expenditures and thus were “treated” by the Supreme Court’s decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in “treated” states to spending in the “control” states …

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.

Dialogic Defense Of Alden, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

Reassessing Corporate Personhood In The Wake Of Occupy Wall Street, Nick J. Sciullo

Nick J. Sciullo

This article is about corporate personhood, discussed on the backdrop of class consciousness and criticisms of capital generated, in large part, by the recent and continuing Occupy Movements. I am at first concerned with articulating the evolving jurisprudence of corporate personhood as developed in the Supreme Court of the United States. Combined with this doctrinal approach, I offer a Marxist criticism of corporate personhood jurisprudence that culminates in a discussion of the Occupy Movements' logic of resistance to corporate domination in the United States' law and policy. First, I discuss the role Marxist criticism has played in legal discourse and …

Book Review: 'Living Legislation' By Jeffery A. Jenkins & Eric M. Patashnik (Eds), Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

Gay Parenthood And The Revolution Of The Modern Family: An Examination Of The Unique Barriers Confronting Gay Adoptive Parents, Nicholas Arntsen

Nicholas Benedict Arntsen

Abstract: In recent decades, the structure of the American family has been revolutionized to incorporate families of diverse and unconventional compositions. Gay and lesbian couples have undoubtedly played a crucial role in this revolution by establishing families through the tool of adoption. Eleven adoptive parents from the state of Connecticut were interviewed to better conceptualize the unique barriers gay couples encounter in the process adoption. Both the scholarly research and the interview data illustrate that although gay couples face enormous legal barriers, the majority of their hardship comes through social interactions. As a result, the cultural myths and legal restrictions …

Implementing Dodd-Frank: A Review Of The Cftc‟S Rulemaking Process: Testimony, Michael Greenberger

Michael Greenberger

The Relationship of Unregulated OTC Derivatives to the Meltdown. It is now accepted wisdom that it was the non-transparent, poorly capitalized, and almost wholly unregulated over-the-counter (“OTC”) derivatives market that lit the fuse that exploded the highly vulnerable worldwide economy in the fall of 2008. Because tens of trillions of dollars of these financial products were pegged to the economic performance of an overheated and highly inflated housing market, the sudden collapse of that market triggered under-capitalized or non-capitalized OTC derivative guarantees of the subprime housing investments. Moreover, the many undercapitalized insurers of that collapsing market had other multi-trillion dollar …

A People's History Of Baseball, Mitchell J. Nathanson

Mitchell J Nathanson

Baseball is much more than the national pastime. It has become an emblem of America itself. From its initial popularity in the mid-nineteenth century, the game has reflected national values and beliefs and promoted what it means to be an American. Stories abound that illustrate baseball's significance in eradicating racial barriers, bringing neighborhoods together, building civic pride, and creating on the field of play an instructive civics lesson for immigrants on the national character. In A People's History of Baseball, Mitchell Nathanson probes the less well-known but no less meaningful other side of baseball: episodes not involving equality, patriotism, heroism, …

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 …

Book Review: Capital And Its Discontents: Conversations With Radical Thinkers In A Time Of Tumult By Sasha Lilly (Pm Press, 2011), Nick J. Sciullo

Nick J. Sciullo

No abstract provided.

Drafting Proper Short Bill Titles: Do States Have The Answer?, Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

Bad News For John Marshall, David B. Kopel, Gary Lawson

David B Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.