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The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter Jan 2021

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …


Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger Jan 2021

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …


Antitrust & Corruption: Overruling Noerr, Tim Wu Jan 2020

Antitrust & Corruption: Overruling Noerr, Tim Wu

Faculty Scholarship

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.

Since …


Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen Jan 2019

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional …


Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen Jan 2019

Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen

Faculty Scholarship

No recent whistleblower has been more lionized or vilified than Edward Snowden. He has been nominated for the Nobel Peace Prize and denounced as a "total traitor" deserving of the death penalty. In these debates, Snowden's defenders tend to portray him as a civil disobedient. Yet for a range of reasons, Snowden's situation does not map neatly onto traditional theories of civil disobedience. The same holds true for most cases of national security whistleblowing.

The contradictory and confused responses that these cases provoke, this essay suggests, are not just the product of polarized politics or insufficient information. Rather, they reflect …


The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt Jan 2019

The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt

Faculty Scholarship

This essay addresses the problem of truth today in light of the common belief, especially among progressives, that we have entered a post-truth age, as well as of the frequent claim that our post-truth society is the fault of postmodernists and their challenge to the objectivity of truth. The essay does not resolve the strategic question whether the post-truth argument is, as a purely tactical political matter, an effective approach to respond to the onslaught of misrepresentations and lies by President Donald Trump and the New Right. Instead, it explores the post-truth argument from a more synoptic perspective regarding the …


Seeing Transparency More Clearly, David E. Pozen Jan 2019

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The …


Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt Jan 2018

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The …


The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen Jan 2018

The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a …


Does Labour Law Need Philosophical Foundations? (Introduction), Hugh Collins, Gillian L. Lester, Virginia Mantouvalou Jan 2018

Does Labour Law Need Philosophical Foundations? (Introduction), Hugh Collins, Gillian L. Lester, Virginia Mantouvalou

Faculty Scholarship

This is the introductory chapter of the book Philosophical Foundations of Labour Law (Collins, Lester, Mantouvalou eds, OUP, 2018). It argues that labour law needs philosophical foundations and explains that careful reflection about underlying moral and political principles and values can serve to provide firm foundations and a clear sense of direction for labour law. At a time when many appear to doubt the value of labour laws and workers’ rights at all, the chapter suggests that it is necessary to reassert that the values and principles that provide the foundations for a system of labour law are not those …


Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen Jan 2018

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal …


Transparency's Ideological Drift, David E. Pozen Jan 2018

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make …


How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen Jan 2018

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed – dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, …


"Death Tax" Politics, Michael J. Graetz Jan 2016

"Death Tax" Politics, Michael J. Graetz

Faculty Scholarship

In his Keynote Address “Death Tax” Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation’s progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.


Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss Jan 2016

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …


Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank Jan 2016

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Christina C. Ma, Elizabeth R. Cruikshank

Faculty Scholarship

Public education in the United States has been crippled by a combination of entrenched bureaucratic governance and special-interest politics. To remedy these failings, school districts, states, and the federal Education Department have adopted education reforms characterized by rigorous outcome-focused standards and assessments and the empowering of public schools, charter or otherwise, to meet the standards. Despite promising initial results, however, the reforms have been widely criticized, including by the populations they most seek to help. To explain this paradox, this Article first tries to assimilate the new education reforms to the most frequently proposed alternatives to bureaucratic governance — marketization, …


The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler Jan 2016

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires – “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the …


The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt Jan 2015

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain …


Of Constituents And Contributors, Richard Briffault Jan 2015

Of Constituents And Contributors, Richard Briffault

Faculty Scholarship

In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views and concerns. Representatives ... can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the concept of self-governance.”

The Chief Justice’s emphasis on the representative-constituent relationship jarring, however, as McCutcheon addressed the effort of an individual to …


The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault Jan 2014

The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault

Faculty Scholarship

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, …


The Politics Of Incivility, Bernard E. Harcourt Jan 2012

The Politics Of Incivility, Bernard E. Harcourt

Faculty Scholarship

The Flemish painter, Pieter Bruegel, portrayed in his artwork men relieving themselves, cripples begging, and peasants toiling – as well as butchery and the gallows. In his masterful work, The Civilizing Process, Norbert Elias revealed how the “late medieval upper class” had not yet demanded, as later generations would, that “everything vulgar should be suppressed from life and therefore from pictures.” For centuries now, defining incivility has been intimately connected with social rank, class status, political hierarchy, and relations of power. The ability to identify and sanction incivility has been associated with positions of political privilege – and simultaneously has …


Super Pacs, Richard Briffault Jan 2012

Super Pacs, Richard Briffault

Faculty Scholarship

The most striking campaign finance development since the Supreme Court’s Citizens United decision has not been an upsurge in corporate or union spending as many commentators predicted. Instead, federal election campaigns have witnessed the emergence of a new campaign finance vehicle – the Super PAC – which relies primarily on extremely large individual contributions, not corporate or union money, but which threatens to upend the federal campaign finance regime in place since 1974.

Super PACs can accept contributions in unlimited amounts and use them to engage in unlimited independent expenditures expressly supporting or opposing candidates. Non-existent before the spring of …


"Becker On Ewald On Foucault On Becker": American Neoliberalism And Michel Foucault's 1979 Birth Of Biopolitics Lectures, Gary S. Becker, Francois Ewald, Bernard E. Harcourt Jan 2012

"Becker On Ewald On Foucault On Becker": American Neoliberalism And Michel Foucault's 1979 Birth Of Biopolitics Lectures, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; …


Updating Disclosure For The New Era Of Independent Spending, Richard Briffault Jan 2012

Updating Disclosure For The New Era Of Independent Spending, Richard Briffault

Faculty Scholarship

One of the most striking developments in recent elections has been the upsurge in spending by independent committees, particularly Super PACs and 501(c) nonprofit corporations, that are not technically affiliated with specific candidates or parties but that frequently work to promote or oppose specific candidates or parties. In many elections, these committees are de facto surrogates for the candidates they are aiding. Although our disclosure laws are reasonably effective at obtaining the disclosure of the identities of donors to candidates and parties, they fail to provide effective disclosure of the identities of the donors to independent committees. The Citizens United …


Updating Disclosure For The New Era Of Independent Spending, Richard Briffault Jan 2012

Updating Disclosure For The New Era Of Independent Spending, Richard Briffault

Faculty Scholarship

One of the most striking developments in recent elections has been the upsurge in spending by independent committees, particularly Super PACs and 501(c) nonprofit corporations, that are not technically affiliated with specific candidates or parties but that frequently work to promote or oppose specific candidates or parties. In many elections, these committees are de facto surrogates for the candidates they are aiding. Although our disclosure laws are reasonably effective at obtaining the disclosure of the identities of donors to candidates and parties, they fail to provide effective disclosure of the identities of the donors to independent committees. The Citizens United …


Maximizing Autonomy In The Shadow Of Great Powers: The Political Economy Of Sovereign Wealth Funds, Kyle J. Hatton, Katharina Pistor Jan 2011

Maximizing Autonomy In The Shadow Of Great Powers: The Political Economy Of Sovereign Wealth Funds, Kyle J. Hatton, Katharina Pistor

Faculty Scholarship

Sovereign wealth funds (“SWFs”) have received a great deal of attention since they appeared as critical investors during the global financial crisis. Reactions have ranged from fears of state intervention and mercantilism to hopes that SWFs will emerge as model long-term investors that will take on risky investments in green technology and infrastructure that few private investors are willing to touch. In this paper we argue that both of these reactions overlook the fact that SWFs are deeply embedded in the political economy of their respective sovereign sponsors. This paper focuses on four political entities that sponsor some of the …


The Institutional Configuration Of Deweyan Democracy, William H. Simon Jan 2011

The Institutional Configuration Of Deweyan Democracy, William H. Simon

Faculty Scholarship

After more than two decades of effort to recover and adapt John Dewey’s thought for a reformed liberal politics, the institutional implications of his ideas remain elusive. This essay argues that a distinctive set of modern business practices and an incipient public policy architecture embody key precepts of Dewey’s political theory. The practices and architecture have developed independently of Dewey’s ideas, but they elaborate the ideas implicitly, and they are illuminated by them.


Economically Benevolent Dictators: Lessons For Developing Democracies, Ronald J. Gilson, Curtis J. Milhaupt Jan 2010

Economically Benevolent Dictators: Lessons For Developing Democracies, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The post-war experience of developing countries leads to two depressing conclusions: only a small number of countries have successfully developed; and development theory has not produced development. In this article we examine one critical fact that might provide insights into the development conundrum: Some autocratic regimes have fundamentally transformed their economies, despite serious deficiencies along a range of other dimensions. Our aim is to understand how growth came about in these regimes, and whether emerging democracies might learn something important from these experiences.

Our thesis is that in these economically successful countries, the authoritarian regime managed a critical juncture in …


Subsidizing The Press, David M. Schizer Jan 2010

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Information is the lifeblood of a free society, and the professional press is a crucial source of information. For many years, the positive externalities from investigative and beat reporting were cross-subsidized by robust advertising and subscription revenue. Yet the professional press is experiencing a severe economic crisis, and news organizations across the nation are on the brink of insolvency. When an activity that generates positive externalities is undersupplied, the textbook policy response is a government subsidy. Yet if the press becomes financially dependent on the government, would they be deterred from monitoring and criticizing the government? If so, the subsidy …


China's Courts: Restricted Reform, Benjamin L. Liebman Jan 2008

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

This essay examines the development of China's courts over the past decade. Although court caseloads have increased only modestly, courts have engaged in significant reforms designed to raise the quality of their work. Yet such top-down reforms have been largely technical, and are not designed to alter the power of China's courts. Courts have also encountered new challenges, including rising populist pressures, which may undermine both court authority and popular confidence. The most important changes in China's courts have come from the ground up: some local courts have engaged in significant innovation, and horizontal interaction among judges is facilitating the …