Law Commons^™

Presidential Powers Revisited: An Analysis Of The Constitutional Powers Of The Executive And Legislative Branches Over The Reorganization And Conduct Of The Executive Branch, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Presidential Powers Revisited: An Analysis of the Constitutional Powers of the Executive and Legislative Branches Over the Reorganization and Conduct of the Executive Branch.

Alexandra R. Harrington, Esq.

Two hundred eighteen years after George Washington was elected to serve as the first President of the United States, the Constitutional Framers would likely be heartened to know that over a dozen people are vying for the right to run as their party’s presidential candidate in the upcoming 2008 presidential election. However, these same Framers would likely be severely disheartened to learn that the powers and responsibilities assigned to the executive …

Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois

Goutam U Jois

Over the past several decades, America’s inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less. In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.

Where Are Your Papers? Photo Identification As A Prerequisite To Voting, Michael J. Kasper

Michael J. Kasper

ABSTRACT WHERE ARE YOUR PAPERS? Photo Identification as a Prerequisite to Voting Remember the old war movies? Richard Attenborough or William Holden is slowly walking down misty, Parisian streets, the collar of his trench turned up, the brim of the fedora pulled low. A black sedan screeches around the corner and screams to a stop in front of him, before he has time to react. Soldiers bound from the car, pistols draw, and bark “Vhere are your papers?” When did America become this movie? The U.S. Supreme Court will take up this question this term. This article explores five recent …

Hack, Mash & Peer: Crowdsourcing Government Transparency, Jerry Brito

Jerry Brito

Hack, Mash & Peer: Crowdsourcing Government Transparency

JERRY BRITO George Mason University - Mercatus Center - Regulatory Studies Program October 21, 2007

Abstract: In order to hold government accountable for its actions, citizens must know what those actions are. To that end, they must insist that government act openly and transparently to the greatest extent possible. In the Twenty- First Century, this entails making its data available online and easy to access. If government data is made available online in useful and flexible formats, citizens will be able to utilize modern Internet tools to shed light on government activities. Such …

Will The Real "Che" Guevara Please Stand Up? Labor And Authoritarianism In Sandinista Nicaragua, Stephen Diamond

Stephen F. Diamond

This paper examines the impact of authoritarian left theory, in particular that of “Che” Guevara, on labor rights during the Sandinista’s Nicaraguan revolution. This is important because of the current revival of movements like that of Hugo Chavez in Venezuela that rely on similar approaches to labor and human rights issues as that of the original Sandinista movement. In addition, there is widespread interest today in “Che” Guevara, yet little is known or understood about his actual politics while in power during the early years of the Cuban revolution. In addition, there is increasing sympathy for such authoritarian approaches to …

Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer

Howard Schweber

The conventional wisdom about the Australian Constitution is that it neither says what it means, nor means what it says. The gap between language and meaning is starkest in the sections on executive power, in which the explicit language vesting all executive power in the Governor-General is supplanted by the conventions of Responsible Government, according to a universally accepted view of what the constitutional framers intended to create. One consequence of this divergence between language and practice is that constitutional interpretation normally requires a series of finesses, in which much of the text is read out of the document entirely. …

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, Kwasi H. Prempeh

H. Kwasi Prempeh

One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, since …

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency Of Post-Authoritarian Africa, H. Kwasi Prempeh

H. Kwasi Prempeh

ABSTRACT One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, …

The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren F. Redman

Lauren F Redman

This paper examines the emergence of art and antiquities restitution cases being brought in U.S. federal courts under the FSIA. The purpose of the paper is twofold. First, it aims to serve as a compendium of the major art and antiquities restitution cases brought under the FSIA up to this point. In addition, it examines several questions concerning the appropriateness of the FSIA being used in the way it has been in the context of the art cases. Have the jurisdiction granting provisions springing from the exceptions to the FSIA eclipsed the primary purpose of foreign sovereign immunity, which is …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Stronger Trade Or Stronger Embargo: What The Future Holds For United States-Cuba Trade Relations, Michael D. Margulies

Michael D Margulies

This paper provides an analysis of the history, politics, legislation and current state of affairs of United States-Cuban trade relations. Beginning with the political climate and events that have led to the existing and limited trade relations between the two countries, the article proceeds to identify the possibility for enhanced trade. The subject of the existing legislation is important in its own right and may serve as an indicator of what potential exists for future U.S.-Cuban relations. Though such a relationship may prove to be economically beneficial for both the U.S. and Cuba, there is much more at stake from …

Presidents And Process: A Comparison Of The Regulatory Process Under The Clinton And Bush (43) Administrations, Stuart Shapiro

Stuart Shapiro

Do procedural controls placed on the regulatory process allow politicians to control bureaucratic decisionmaking? I use data on the regulatory process under the Clinton and Bush Administrations to assess the differences between these presidents with distinct ideological regulatory agendas. I find that the number of comments received, the changes made between proposal and finalization of rules, the frequency with which agencies bypass notice and comment, the frequency of use of different regulatory analyses, and the time to complete a rulemaking did not vary substantially between the two presidencies. This raises questions about the role of procedural controls on agency decisionmaking.

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Jason J. Czarnezki

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …

Using Federal Law To Prescribe Pedagogy: Lessons Learned From The Scientifically-Based Research Requirements Of No Child Left Behind, Kamina A. Pinder

Kamina A Pinder

Abstract Recent data on national student achievement under the Reading First program has tentatively established it as the most successful federal academic program in the existence of federal education law. Reading First is an early reading intervention program with rigid curricular and accountability provisions and is the centerpiece of the No Child Left Behind Act--the most far-reaching federal encroachment on state and local control of education in our nation’s history. In implementing the Reading First statute, U.S. Department of Education officials are alleged to have violated statutory provisions that prohibit Department officials from influencing state and local choice of curricular …

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

Reviving Cities - Legal Remedies To Municipal Financial Crises, Omer Kimhi

Omer Kimhi

Local fiscal crises are by no means a negligible phenomenon. In the last 30 years a significant number of the nation’s cities have suffered from serious financial strain, and several large and important cities (such as New York, Philadelphia and Miami) have even experienced a full-blown crisis (where they did not have sufficient resources to finance basic public services). In this paper I discuss the legal remedies developed over the years to address local insolvency (the creditors’ remedies, Chapter 9 of the bankruptcy code and state financial boards), and I explain the logic and limits of each remedy. The analysis …

Usury Law, Payday Loans, And Statutory Sleight Of Hand: An Empirical Analysis Of American Credit Pricing Limits, Christopher L. Peterson

Christopher L Peterson

In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. In order to understand the evolution of American usury law, this paper presents a systemic empirical analysis of all fifty state usury laws in two time periods: 1965 and the present. The highest permissible price of a typical payday loan authorized under each state’s usury law was calculated. These prices were …

Scenarios For Sustainable Peace In Colombia By Year 2019, Gustavo A. Gomez-Sorzano

GUSTAVO A GOMEZ-SORZANO Jr.

This paper presents the simulation results of the model of cyclical terrorist murder for Colombia (Gómez-Sorzano 2005) on the purpose of doing sensitivity analysis to help the country in the design of a national policy bringing sustainable peace before year 2019. The first part presents 11 scenarios 2005-2010. The final section shows 18 additional scenarios 2006-2019. According to them sustainable peace will be granted before year 2019.

Time Well Spent: Congressional Daylight Saving Time Legislation Saves Lives, Not Just Oil, Steve P. Calandrillo

Steve P. Calandrillo

Abstract: Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and Congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last 30 years. While Congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored. This …

The Uptick Rule Of Short Sale Regulation - Can It Alleviate Downward Price Pressures From Negative Earnings Shocks?, Lynn Bai

Lynn Bai

This paper empirically examines the effect of the uptick rule (including the bid test applicable to NASDAQ stocks) of short sale regulations on stock prices and short selling activities immediately after negative earnings surprises that occurred during the period of May to November 2005. It compares price paths and short selling activities of stocks restricted by the uptick rule with stocks that were exempted from the rule as a result of the SEC’s Pilot Program. The study has not found any evidence that prices of stocks subject to the rule declined at a slower speed than prices of exempted stocks …

Where Lies The Emperor's Robe? An Inquiry Into The Problem Of Judicial Legitimacy, Gregory C. Pingree

Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it …

The Choice-Necessity Paradigm: Rethinking Debtor-Creditor Relationships In The Consumer Context, David Fuller

David Fuller

The choice-necessity paradigm is a new approach to understanding the problem of rising rates of consumer bankruptcy. The choice-necessity paradigm uses an analytical structure that is based on a combination of the two dominant analytical models for explaining the increased rate of consumer bankruptcy filings: the structural model and the cultural model. The structural model emphasizes social and economic factors that cause debtors to rely on consumer credit, and increase the risk of bankruptcy filing. Although the structural model defines the problem and identifies the risk to consumers, it does not solve the problem, because it does not adequately balance …

Regulation Of Blog Campaign Advocacy On The Internet: Comparing U.S., German And Eu Approaches, Allison Hayward

Allison Hayward

This essay examines how U.S., Germany, and EU cases have treated the regulation of political commentary on the Internet. As political blogging grows in popularity, the reach of these sites, and their influence in political campaigns, may make them a target for regulation by rivals and incumbents, both at home and abroad. Since ordinarily any URL can be reached from anywhere with Internet access, conflicting domestic rules about what can be said (and who can say it) present potential for conflicting rules on blogging. In brief, U.S. law protects blogging content, but may impose restrictions on the source of political …

Science Before Law: American Exceptionalism In The Kyoto Protocol And The Development Of A Global Norm Of Environmental Compliance, Elizabeth L. Chalecki

Elizabeth L Chalecki

This article will argue that a new norm of compliance with agreements is becoming customary with regard to the global environmental commons, particularly in the case of climate change and U.S. behavior towards the Kyoto Protocol. While the United States’ repudiation of its signature on the Protocol in 2001 was legal under the practice of traditional international law, this same practice is no longer sufficient in scope or in time to keep pace with the rapid advances in our scientific understanding of global environmental processes. Because every member of the international community can suffer significant harm from climate change, the …

Liberal Bias In The Legal Academy: Overstated And Undervalued, Michael Vitiello

Michael Vitiello

Abstract of Liberal Bias in the Legal Academy: Overstated and Undervalued According to the right, universities are hotbeds of radicalism. Critics of universities like David Horowitz have tried to push their agenda through legislation. Until recently, law schools drew little attention. That changed with the publication of a study that appeared in the Georgetown Law Journal; the right now cites the study as evidence that law schools too lean too far to the left. This article examines the debate. First, it examines the Georgetown study and concludes that the study overstates the extent to which law faculties are dominated by …

Municipal Overreaching; Federal Preemption As It Applies To Town Ordinances Outlawing The Rental Of Housing To Undocumented Aliens, Hayden Patrick O'Byrne

Hayden Patrick O'Byrne

Within the past year or so a handful of towns around the United States have passed ordinances prohibiting undocumented aliens from renting housing. This paper explores how these ordinances are incompatible with the Federal Immigration Scheme and preempted by Federal Law.

The Much Maligned 527 And Institutional Choice, Lloyd H. Mayer

Lloyd Hitoshi Mayer

The continuing controversy over “527” organizations has led Congress to impose extensive disclosure requirements on these political organizations and to consider imposing extensive restrictions on their funding as well. The debate about what laws should govern these entities has, however, so far almost completely ignored the fact that such laws raise a complicated institutional choice question. This Article seeks to resolve that question by developing a new institutional choice framework to guide this and similar choices. The Article first explores the context for making this determination by describing the current laws governing 527s, including both federal election laws administered by …

But Is It Law? An Analysis On The Legal Nature Of The Kimberley Process Certification Scheme On Conflict Diamonds And Its Treatment Of Non-State Actors, Kimberly J. Curtis

Kimberly J Curtis

In 2003, faced with the growing problem of illicit diamonds funding conflict and human rights abuses in Africa, representatives from states, the diamond industry and civil society formed the Kimberley Process Certification Scheme to regulate the flow of the so-called conflict diamonds. Since then, the agreement has developed into an authoritative legal agreement and enforceable regime. It demonstrates an example of a soft law agreement that through state practice, has been elevated to a higher level of obligation in international law.

The Kimberley Process also illustrates a growing trend in international law to incorporate non-state actors, particularly multinational corporations, into …

Adaptation, Evolution And Symbiosis In Water Law, Sandi Zellmer

Sandi Zellmer

: This article traces the evolution of the laws governing the use of water for consumption, waste disposal, public purposes and environmental protection. It provides a unique integration of water resources law and environmental law, two fields that are otherwise highly fragmented in the United States. Both the historic tensions and the emerging collaborations among federal, state, tribal and private interests in managing water resources are assessed in an effort to illuminate future pathways for conservation and the restoration of degraded waterways. The article begins with colonial America and proceeds through five significant eras in U.S. history: the Gilded Age …

Democracy On Trial: Terrorism, Crime, And National Security Policy In A Post 9-11 World., David A. Schultz

David A Schultz

Post 9-11 concerns in the United States, among the European Union (EU) members, and other western democracies regarding international terrorism forced convergence of the traditionally distinct policy areas of domestic criminal justice and national security. This convergence has produced several policy and institutional conflicts that pit individual rights against homeland security, domestic law and institutions against international norms and tribunals, and criminal justice agencies against national security organizations. This Article examines regime responses to international terrorism, principally in the United States, in comparison to the European Union, seeking to describe the consequences of the merger of criminal justice norms with …