Law and Politics Commons^™

The Public Trust: Administrative Legitimacy And Democratic Lawmaking, Katharine Jackson

Faculty Articles and Other Publications

This Article argues that recent United States Supreme Court decisions invalidating agency policymaking rely on a normatively unattractive and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their …

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart M. Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Articles

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find …

Supreme Court Legitimacy Under Threat? The Role Of Cues In How The Public Responds To Supreme Court Decisions., Laura Moyer, Scott S. Boddery, Jeff Yates, Lindsay Caudill

Faculty and Staff Scholarship

Understanding how the public views the Court and its rulings is crucial to assessing its institutional stability. However, as scholars note, “People are broadly supportive of the court and believe in its ‘legitimacy’—that is, that Supreme Court rulings should be respected and followed. But we don’t know that much about whether people actually agree with the case outcomes themselves.” In this article, we highlight empirical research investigating the factors that affect public agreement with Court decisions, highlighting recent developments from our work. At the onset, it is to note that the public generally hears about the Court’s decisions from media …

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

Faculty Scholarship

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

Operation Lone Star: The Spectacle Of Immigration Federalism, Danielle Puretz

Dissertations, Theses, and Capstone Projects

Texas Governor Greg Abbott launched Operation Lone Star in March 2021 to respond to the “crisis” at the United States/Mexico border. While in the US immigration is usually thought of as a federal responsibility, different states have worked to expand their capacity to welcome or exclude immigrants. Operation Lone Star is an example of how one state is working to restrict immigration to the US and build notoriety for its republican governor. Drawing on press releases, executive orders, news articles, opinion pieces, and other sources I highlight the performative politics within this initiative. Operation Lone Star is an example of …

Criminal Policy To Combat The Spread Of Electronic Rumours (Under Decree-Law No. 34 Of 2021 On Combating Rumours And Cyber Crimes), Ashraf Kandil

Journal of Police and Legal Sciences

The UAE's role in combating electronic rumors and reducing its dissemination has been demonstrated by the legislative development of IT crime laws in the UAE. The most recent is the issuance of the Federal Decree-Law No. (34) of 2021 concerning the fight against rumors and cybercrime. Otherwise, the problem of the current study revolves around the flexibility of drafting the procedural texts in order to deal with the constant development of the forms and circumstances of spreading rumors, as well as to indicate their effectiveness in reducing their effects. Therefore, the current study aims to identify the criminal policy to …

Oklahoma V. Castro-Huerta, United States Supreme Court, Brett Kavanaugh

US Government Documents Related to Indigenous Nations

This United States (US) Supreme Court decision, argued April 27, 2022 and decided June 29, 2022 expanded the reach of state jurisdiction to allow for prosecution of crimes that occur on Indigenous land, regardless of whether or not a state is named as having such jurisdiction under US Public Law 280. In 2020, the US Supreme Court's decision on McGirt v. Oklahoma established that much of the eastern part of the state of Oklahoma is Indigenous land and therefore falls under either tribal jurisdiction or Federal jurisdiction. In 2015 Victor Manuel Castro-Huerta was charged and convicted of child neglect by …

Legislating Against Liberties: Congress And The Constitution In The Aftermath Of War, Harry Blain

Dissertations, Theses, and Capstone Projects

How far can a democracy go to protect itself without jeopardizing the liberties upon which democracy depends? This dissertation examines why wartime restrictions on civil liberties outlive their original justifications. Through a comparative historical analysis of five major American wars, it illustrates the decisive role of the U.S. Congress in preserving these restrictions during peacetime. This argument challenges the prevailing consensus in the literature, which identifies wartime executive power as the main threat to postwar freedoms. It also reveals broader narratives of American constitutional development, including the rise and fall of intrusive congressional investigations, the decline of sedition legislation since …

The Role Of Non-Governmental Organizations (Ngos) In Improving Human Rights In Iraq, Naser A. Yahya

Department of Political Science: Dissertations, Theses, and Student Research

Iraq has had a long history of human rights violations since its inception as a modern state in 1921. This is true especially under the personalistic dictatorship of Saddam Hussein. Under his regime, the Iraqi people suffered a consistent pattern of gross violations of internationally recognized human rights, including political imprisonment, torture, and summary and arbitrary executions. This regime used a variety of mechanisms to squelch political dissent, including house-to-house searches; arbitrary arrests, often in large numbers; surveillance; harassment and questioning of family members; detention of targeted individuals, such as those returning to Iraq pursuant to amnesties, at unknown locations; …

Court Legitimacy & The Shadow Docket, Colton Tilley

Honors Capstones

No abstract provided.

Examining Stock Trading Reforms For Congress Hearing Before The U.S. House Of Representatives Committee On House Administration, Donna M. Nagy

Public Testimony by Maurer Faculty

Professor Nagy testified (text attached, video below) in support of federal legislation that would prohibit members of Congress from owning the securities of individual publicly traded companies as well as certain other investments that would likely conflict with their official duties.

It was nearly 10 years ago to the day when President Barack Obama signed the Stop Trading on Congressional Knowledge (STOCK) Act, requiring enhanced financial disclosures and creating new securities transaction reporting rules for members of Congress, certain members of their family, and their staff. The Act also made absolutely clear that a member of Congress who trades securities …

The Fuel For Neo-Nazism, Brandon M. Rubsamen

Global Tides

This paper attempts to explain the cause of support for far-right extremism movements in Europe. It takes a comparative approach in explaining that support by first analyzing Germany and Luxembourg. In each country, politics, history, economics, and society are explored in order to elicit a root cause. Once that main factor is found, Norway and Greece are also analyzed to see if the hypothesis holds. Political stability is hypothesized to be the root cause in far-right support in Germany (and lack thereof in Luxembourg), and the examples of Norway and Greece support this hypothesis. By comparing and contrasting aspects of …

Deterioration Of The Tenth Amendment: Why Federalism’S Hierarchy Must Be Restored, Giana Depaul

Helm's School of Government Conference - 2021-2024

No abstract provided.

Opinion Regarding The Status Of Mineral Ownership Underlying The Missouri River Within The Boundaries Of The Fort Berthold Reservation (North Dakota), United States Department Of The Interior, Robert T. Anderson

US Government Documents Related to Indigenous Nations

This memorandum, dated February 4, 2022, from the United States (US) Department of the Interior (Office of the Solicitor) to the Secretary and Assistant Secretary of Land and Minerals Management, the Assistant Secretary of Indian Affairs, and the Director of the Bureau of Indian Affairs rescinds the Solicitor’s May 26, 2020 opinion regarding mineral rights on the Fort Berthold Reservation which declared the state of North Dakota to be the owner of said rights. This memorandum reaffirms the January 17, 2017 opinion of Solicitor Hilary Tompkins that the rights belong to the Three Affiliated Tribes of the Fort Berthold Reservation. …

Texas Disenfranchisement Of Felons, Michelle Baker

Quest

Policy Research Project

Research in progress for GOVT 2306: Honors Texas Government

Faculty Mentor: Tiffany Cartwright, Ph.D.

Michelle Baker wrote the following research paper as an assignment for my online GOVT 2306: Honors Texas Government class during the Fall 2020 semester. The class assignment helps students begin to formulate a classic policy paper, in which alternative policy options are discussed and analyzed, ultimately leading to a preferred policy option. Students submitted just a few paragraphs of the paper at a time over the course of the fall semester before finally pulling everything together in one cohesive research paper. As Michelle’s …

The War On Drugs And Its Legal Effects On Black Americans, Alexia L. Howard-Mullins

2022 Symposium

The differences in treatment between Black and white Americans in the past fifty years has been a topic of thought in the minds of political and sociological scholars since the inception of the War on Drugs in 1971. These differences in treatment may lead to discrimination legally, resulting in longer prison sentences and a higher proportion of Black Americans in prison. This study analyzes the results of the War on Drugs that led to disproportionate imprisonment of Black Americans, including mandatory sentencing laws, drug classifications, and discrimination within law enforcement and the legal system. This study will use primary sources …

À La Carte Cable: A Regulatory Solution To The Misinformation Subsidy, Christopher R. Terry, Eliezer J. Silberberg, Stephen Schmitz, John Stack, Eve Sando

Catholic University Journal of Law and Technology

Although “fake news” is as old as mass media itself, concerns over disinformation have reached a fever pitch in our current media environment. Online media outlets’ heavy reliance on user-generated content has altered the traditional gatekeeping functions and professional standards associated with traditional news organizations. The idea of objectivity-focused informational content has primarily been substituted for a realist acceptance of the power and popularity of opinion-driven “news.” This shift is starkly visible now: mainstream news media outlets knowingly spread hoaxes, conspiracy theories, and the like.

This current state of affairs is not some freak accident. The Supreme Court’s First Amendment …

Promoting Regulatory Prediction, Jonathan S. Masur, Jonathan R. Nash

Faculty Articles

It is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …

Reflections On Authoritarianism, Mara Redlich Revkin

Faculty Scholarship

No abstract provided.

A Culture Of Institutional Racism: Housing Policies During The New Deal, Breyonna J. Bowen

Capstone Showcase

There currently exists a distressed relationship between African Americans and housing due to previously enacted policies. In looking at this issue, I aim to use the theory of institutional racism to explain how past housing policies that enforce and perpetuate discrimination have impacted this current relationship. Through the method of policy analysis, I attempt to pinpoint where past housing policies have failed to provide housing to many African Americans. I find that there are several policies that were enacted during 1930s and 40s, specifically the New Deal Era, that inflicted discriminatory housing policies on African Americans. The findings indicate that …

Reclamation: Managing Water In The West; An Overview Of The Pick-Sloan Missouri Basin Program, United States Bureau Of Reclamation, Roger S. Otstot

US Government Documents Related to Indigenous Nations

This undated summary released by the Bureau of Reclamation offers a concise overview of the Pick-Sloan Missouri Basin flood control plan which was enacted when Congressed passed the Flood Control Act of 1944. This plan led to the construction of several dams in the Missouri River basin, including the Garrison Dam. The completion of the Garrison Dam displaced the majority of the Mandan, Hidatsa, and Arikara people living on the Fort Berthold Reservation. This document contains tables, graphs, maps, and a photograph.

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

The Influence Of The Federalist Society On Judical Politics And Law In The United States, Peter S. K. Lynch

Theses and Dissertations--Political Science

This dissertation examines the Federalist Society, which is a network of conservative and libertarian attorneys, judges, law professors, and law students. The organization was founded by law students at Harvard Law School, Yale Law School, and the University of Chicago Law School in 1982, and has, over the last four decades, come to play a central role in law and politics in the United States. Individuals affiliated with the Federalist Society influence the law through a variety of avenues.

Federalist Society-members advance the goals of the conservative legal movement in a variety of capacities—by writing amicus curiae briefs providing the …

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

A Guide To The 87th Texas Legislative Session, José Menéndez, Pearl D. Cruz

The Scholar: St. Mary's Law Review on Race and Social Justice

Challenges and potential solutions during the 87th Texas Legislative session.

Dossier: The Stateless Rohingya—Practical Consequences Of Expulsion, Fiza Lee-Winter, Tonny Kirabira

Genocide Studies and Prevention: An International Journal

The international community has been called upon to ramp up efforts to end statelessness and provided with a guiding framework of 10 Actions. This dossier presents the practical consequences of expulsion, both direct and indirect outcomes of collective violence, directed towards the Rohingyas. Touching upon the nexus between children's rights, human trafficking, and practical challenges associated on-the-ground, the dossier also discusses the imperative need for the Association of Southeast Asian Nations (ASEAN) states—collectively as a region—to take steps in fulfilling Action 7 of the Global Action Plan through the birth registration of Rohingya children as part of their existing efforts …

Sufficiently Judicial: The Need For A Universal Ethics Rule On Attorney Behavior In Legislative Impeachment Trials, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In assessing an ethics, rule-based prohibition against New Jersey governmental attorneys representing clients against the state for matters the state had previously assigned to them, the state supreme court noted: “In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people.”

In the beginning of 2020, the United States Senate held an impeachment trial to determine whether former President Donald J. Trump had committed offenses forwarded by the House of Representatives. A U.S. Senate trial, much like state senate trials, is both judicial and political …

Biden Administration U.S. Space Force Policy Literature, Bert Chapman

Libraries Faculty and Staff Presentations

Provides details on U.S. Space Force policy literature produced by the Biden Administration during its first eight months. Includes announcements that the Biden Administration will continue this new armed services branch begun during the Trump Administration. Features congressional testimony of Biden Administration officials such as Secretary of Defense Lloyd Wilson and Air Force Space Command leader General James Dickinson, the text of Space Force's 2021 Digital Force Vision document, congressionally approved FY 2022 space force budget figures, congressional committee comments and report requirements contained in emerging defense spending legislation, the emergence of collaboration between Space Force and universities such as …

Crisis Management Lessons From The Clinton Administration's Implementation Of Presidential Decision Directive 56, Leonard R. Hawley

The US Army War College Quarterly: Parameters

Drawing on personal experience, the author asks what the current administration can learn from the Clinton administration’s implementation of Presidential Decision Directive 56, examines the real-world application of the directive during the Clinton administration and the pitfalls of its agency-centric successor during the Bush administration, and identifies recurring problems and best practices for successfully responding to current global crises.