Law Commons^™

Dividing The Body Politic, James A. Gardner

Journal Articles

It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.

The possibility of sorting …

Reflections On Critical Race Theory In A Time Of Backlash, Athena D. Mutua

Journal Articles

Reviewing my article on critical race theory (CRT), written over fifteen years ago, this Article revisits CRT and its fortunes in this moment of backlash. CRT has become a principal target for erasure in a raging polit- ical campaign that seeks to suppress discussions about racial and gender justice. It does so, in part, by using law to compel the miseducation of the American populace, including its children. The campaign suggests, in the case of race, that efforts to promote racial justice, combat racism, and employ race as an analytical lens—antiracism—is racist. That is, the right- wing argument has shifted …

Introduction: Special Issue On Racial Capitalism And Law, Carmen G. Gonzalez, Athena D. Mutua

Journal Articles

No abstract provided.

Citizenship, Race, And Statehood, Kristina M. Campbell

Journal Articles

This Article will discuss the interplay between citizenship, race, and ratification of statehood in the United States, both historically and prospectively. Part II will discuss the development and history of the Insular Cases and the creation of the Territorial Incorporation Doctrine (“TID”), focusing on the Territory of Puerto Rico and how the issues of citizenship, race, and statehood have evolved in shadow of empire as a result. Part III will look back on the admission to the Union of New Mexico and Arizona—the forty-seventh and forty-eighth states—and discuss the substantial difficulties these territories had in getting admitted for statehood due …

Judicial Populism, Anya Bernstein, Glen Staszewski

Journal Articles

Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.

While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and …

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …

An Empirical Study Of Political Control Over Immigration Adjudication, Catherine Y. Kim, Amy Semet

Journal Articles

Immigration plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which immigration judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the United States, may be influenced by the presidential administration’s political preferences.

We constructed an original dataset of over 830,000 removal proceedings decided between January 2001 and June 2019 after individual merits hearings. First, we found that every presidential administration—not just the current one—disproportionately appointed IJs with backgrounds in the former Immigration and Naturalization Service, the Department of Homeland …

The Comparative Legal Landscape Of Educational Pluralism, Nicole Stelle Garnett

Journal Articles

In the United States, debates about private and faith-based education tend to focus on questions about government funding: which kinds of schools should the government fund (and at what levels)? Should, for example, students be able to use public funds to attend privately operated schools? Faith-based schools? If so, what policy mechanisms should be used to fund private schools—vouchers, tax credits, direct transfer payments? How much funding should these schools receive? The same amount as public schools or less? As a historical matter, the focus on funding in the United States makes sense because only public (that is, government-operated) elementary …

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Journal Articles

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …

Defining The Economic Pie, Not Dividing Or Maximizing It, Martha T. Mccluskey

Journal Articles

This essay challenges the question that drives much of legal analysis: whether to maximize or divide the “economic pie.” Regardless of the answer, this question skews legal analysis and rests on dubious economics. This framing binary inherently presents economic maximizing as the presumptive norm, represented as superior to socioeconomic distribution in both spatial and temporal dimensions. By definition, economic “maximizing” stands larger in scope and first in order. The essay first critiques the idea that legal analysis can aim to make the economy bigger without engaging contested questions of value and politics, showing how this misleading separation of quantity from …

Municipal Responses To Vacant Properties In The United States, James J. Kelly Jr.

Journal Articles

The administrative law specialized magazine No. 24 which explores the foundation of administrative law theory. This issue contains 5 articles that focus on the vacant house issue.

Vacant house measures in American municipalities

The Richardson Escuela: Law As Politics, Makau Wa Mutua

Journal Articles

No abstract provided.

Bureaucratic Speech: Language Choice And Democratic Identity In The Taipei Bureaucracy, Anya Bernstein

Journal Articles

This article illuminates the social nature of bureaucratic practice. Analyzing the everyday speech of bureaucrats in a polyglossic society reveals both their intensely interactive conduct and their recognition that the government they comprise is itself a participant in a social world of institutions and values. My ethnography shows how Taipei city government administrators mobilize ideologies associated with Taiwan’s two primary languages, and stereotypes associated with bureaucracy, to undermine both. Instead, they present themselves as a post-ethnonational and post-bureaucratic avant garde of their new democracy. In doing so, they draw on local values and tropes of legitimation, which place a premium …

Paintbrushes And Crowbars: Richard Rorty And The New Public-Private Divide, John P. Anderson

Journal Articles

In an often-quoted passage, Richard Rorty wrote that “J.S. Mill’s suggestion that governments devote themselves to optimizing the balance between leaving people’s lives alone and preventing suffering seems to me pretty much the last word.” In this Article, I show why, for Rorty, maintaining a strong public-private divide that cordons off final vocabularies—the religious, racial, ethnic, sexual, gender, philosophical, and other terms so important for citizens’ private pursuits of self-creation and self-perfection—from public political discourse is a crucial means to accomplishing both of these goals in post-secular liberal democracies. Public political justifications should instead be articulated in the foundation neutral …

Political Decision-Making At The National Labor Relations Board: An Empirical Examination Of The Board's Unfair Labor Practice Disputes Through The Clinton And Bush Ii Years, Amy Semet

Journal Articles

Does partisan ideology influence the voting of members of multi-member adjudicatory bodies at “independent agencies”? In studying the federal circuit courts of appeals, scholars have found that results of cases vary depending upon the partisan composition of the particular panel hearing a case. Few scholars to date, however, have systematically studied whether partisan panel effects occur in administrative adjudication. In this Article, I explore the impact that partisan ideology and panel composition have on the vote choices of an administrative agency rumored to be one of the most partisan: the National Labor Relations Board (“NLRB”). Employing an original dataset of …

The Spirit And Task Of Democratic Cosmopolitanism: European Political Identity At The Limits Of Transnational Law, Paul Linden-Retek

Journal Articles

The problem motivating this essay is the continuing, yet difficult hope for a Europe of democratic cosmopolitanism, for a Europe in which cosmopolitics works to continually question the terms of lingering exclusion while preserving our ideals of self-legislation and democratic authorship. In what follows, I expand the familiar criticism of Europe’s democratic legitimacy gap, its democratic deficit, as a lens through which to analyse the possibility of a supranational participatory identity within the European political space. First, I describe the contemporary juridification of European politics, specifically concerning the legal formalism of the European Court of Justice, and the dangers such …

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Journal Articles

The Voting Rights Act of 1965 has been described as the "crown jewel" of the Civil Rights Movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the President Bush's Justice Department to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to explain how this …

Nonprofits, Politics, And Privacy, Lloyd Hitoshi Mayer

Journal Articles

The first Part of this Article briefly reviews and contrasts the history and current rules governing disclosure and privacy in the federal tax, federal tax exemption, and federal election law contexts. This review reveals that both the cost-benefit approach and the right-to-privacy approach can be found in this history, but to a greater or lesser extent depending on the context. The second Part explores these two different approaches and the extent to which the existing disclosure rules reflect those approaches. This Part shows that the rules are sometimes but not always based both on the cost-benefit approach to disclosure, in …

The Struggling Class: Replacing An Insider White Female Middle Class Dream With A Struggling Black Female Reality, Angela Mae Kupenda

Journal Articles

“What is the appropriate role of former outsiders who are now on the inside?” I propose that the appropriate role for an outsider who is now an insider, is not to sprawl out on plush, white, crushed velvet sofas, sipping vintage wines or imported teas and nibbling at aged cheese and delicate crackers while enjoying being one among a quota or token few that made it to the inside. Rather, the role of a former outsider is to go to work from the inside to dismantle the house, shrewdly using available tools to remove the nails from the walls, loosening …

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Journal Articles

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Journal Articles

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …

H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, John M. Finnis

Journal Articles

This essay offers first a sketch (by a student and colleague) of H.L.A. Hart's life; second an account of the political philosophy which he explicitly articulated in The Concept of Law (1961), and of its relation to the main currents of Oxford political philosophy in the 1950s; and thirdly an exposition and critical assessment of the normative political theory deployed, to widespread acclaim, in his Law, Liberty & Morality (1963).

What Is This "Lobbying" That We Are So Worried About?, Lloyd Hitoshi Mayer

Journal Articles

Lobbying is both an essential part of our democratic process and a source of some of our greatest fears about dangers to that process. Yet when Congress, the public, and scholars consider loosening or, as is more often the case, tightening the restrictions on lobbying, they usually assume that everyone knows what activities are in fact lobbying. They therefore overlook the fact that multiple definitions of lobbying currently exist in the various federal laws addressing lobbying. This Article seeks to fill this gap by answering the question of how lobbying should be defined for purposes of the existing federal laws …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Book Review, Angela Mae Kupenda

Journal Articles

YOUR BLUES AIN’T LIKE MINE is an excellently written, fictionalized account of the lives of several people set in the fifties as a rural Mississippi community reacts to impending school racial desegregation and the killing of a fifteen year old black boy who had the misfortune of speaking French in the direction of a white woman. I’ve used this book to facilitate discussion on issues of race, gender, the law, class, and politics in several of my law school classes such as Race and the Law, Gender and the Law, and Civil Rights.

Grasping Smoke: Enforcing The Ban On Political Activity By Charities, Lloyd Histoshi Mayer

Journal Articles

The rule that charities are not allowed to intervene in political campaigns has now been in place for over fifty years. Despite uncertainty about the exact reasons for Congress' enactment of it, skepticism by some about its validity for both constitutional and public policy reasons, and continued confusion about its exact parameters, this rule has survived virtually unchanged for all of those years. Yet while overall noncompliance with the income tax laws has drawn significant scholarly attention, few scholars have focused on violations of this prohibition and the IRS' attempts to enforce it.

This Article focuses on the elusive issue …

The Much Maligned 527 And Institutional Choice, Lloyd Hitoshi Mayer

Journal Articles

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 …

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 percent clause. …

Caesar, Succession, And The Chastisement Of Rulers, Patrick Martin, John M. Finnis

Journal Articles

Julius Caesar's reign as dictator and praefectus morum for life ended with his assassination in 44 B.C. It was preceded by over four hundred years of consular rule, a system of executive government by two consuls, elected for a one-year term. Consular government began in 509 B.C., ending the hundred-year rule of the Tarquin kings. Three works printed in 1594 recalled for English readers the overthrow of the Tarquins and the establishing of consular government. One was dedicated to the Earl of Essex. Another, by William Shakespeare, was dedicated to Essex's close companion, the Earl of Southampton. The third work …

Religious Claims And The Dynamics Of Argument, M. Cathleen Kaveny

Journal Articles

This Article investigates the questions whether and when religious claims may enter into public debate about important political issues by considering the purposes of argument in the public square. These purposes include: (1) argument as self-disclosure; (2) argument as persuasion; and (3) argument as bulwark against engagement with the ideas of others. The Article argues that restrictions on the use of religious claims in public deliberations and discussion impede the legitimate functions of public argument as self-disclosing and persuasive activities. In contrast, such restrictions contribute to the use of argument as bulwark, which is arguably destructive to public deliberation in …