Law Commons^™

Quilombo Land Rights, Brazilian Constitutionalism, And Racial Capitalism, Karen Engle, Lucas Lixinski

Vanderbilt Journal of Transnational Law

The 1988 Brazilian Constitution, the first in a wave of new democratic and multicultural constitutions in Latin America, contains a transitory provision guaranteeing collective land rights to quilombo communities. These communities are composed of quilombolas, primarily descendants of formerly enslaved Africans, many of whom had escaped slavery. A 2003 executive decree to implement the land title provision became the subject of a constitutional challenge lasting over fifteen years. When the Brazilian constitutional court eventually upheld the decree in 2018, it relied heavily on the work of US political theorist Nancy Fraser to justify quilombo land title as both recognition and …

Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet

Vanderbilt Journal of Transnational Law

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or …

China's Comparative Constitution, Bui Ngoc Son

Vanderbilt Journal of Transnational Law

The academic field of comparative constitutional law has recently had greater engagements with China's constitution. This Article explains the modes, conditions, and factors of these engagements. The country-studies of China's constitution echo and complicate recent comparative debates on transnational constitution making and the varieties of constitutionalism. Comparative constitutional scholarship formulates new concepts, such as constitutional entrepreneurship and constitutional dissonance, to understand China's constitution. Additionally, it explains China's constitutional divergence from the most similar case, namely Vietnam, and its unexpected constitutional similarities with the most different cases, such as the United States and the United Kingdom. Finally, this scholarship discusses China's …

Oversight Riders, Kevin Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

Reconstructing State Republics, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Our national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of …

The Perfect Match: Solving The Due Process Problem Of Signature Matching With Federal Agency Regulation, Rachel Blumenstein

Vanderbilt Journal of Entertainment & Technology Law

Local election commissions in the United States disenfranchise Americans when they erroneously reject voters’ mail-in ballots for failed signature matches. Disenfranchisement is not only problematic because it is dangerous to the health of American democracy, but also because signature matching violates the procedural due process protections voters are entitled to when they exercise their right to vote. Furthermore, the practice of signature matching is one of many ballot access restrictions that disproportionately impact minority voters under the guise of voter fraud prevention. Expanding the Election Assistance Commission’s mandate to allow it to develop more accurate methods of ballot verification can …

Checks And Balances In The Criminal Law, Daniel Epps

Vanderbilt Law Review

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and the “separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values …

Rethinking Swing Voters, Jonathan S. Gould

Vanderbilt Law Review

In recent decades, swing voters in courts and legislatures have made many of the United States’ most important decisions of law and policy. It would be easy to conclude from the recent history of the Supreme Court and Congress that democracy or majority rule inevitably entails placing many of a society’s most important decisions in the hands of swing voters. Far from being inevitable, however, swing voters result from a highly contingent set of circumstances, both ideological and institutional.

This Article probes these contingencies, describing and evaluating swing voters and the power they hold. It first explains the conditions under …