Law and Politics Commons^™

Politics Across Borders: Nonintervention And Nonforcible Influence Over Domestic Affairs, Lori Fisler Damrosch

Faculty Scholarship

It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state's internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the "rule" against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood.

This article considers the …

The Confirmation Process: Law Or Politics?, Henry Paul Monaghan

Faculty Scholarship

In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.

Social Theory And Political Practice: Unger's Brazilian Journalism, William H. Simon

Faculty Scholarship

Roberto Mangabeira Unger is a citizen of Brazil. While working on Politics, his large-scale treatise on social theory, he has been active in his country's politics. Among the fruits of these activities is a series of political and programmatic commentaries on Brazil published in the Brazilian press. The commentaries apply the style of political analysis and the general political program elaborated in Politics to the recent circumstances of Brazil. Thus, they give an extended illustration of Unger's general social theory. At the same time, they exemplify a form of political writing that attempts to combine ambitious critical social theory …

Rights And Redistribution In The Welfare System, William H. Simon

Faculty Scholarship

The term "right" has a wide variety of connotations. On a very general level, it connotes a social commitment to the dignity and autonomy of the individual, an "affirmation of free human subjectivity against the constraints of group life." On a somewhat more specific level, one can distinguish procedural and substantive connotations. Procedural connotations concern official enforcement institutions. For example, in American legal culture, "right" often connotes judicial enforceability. Substantive connotations concern benefits or powers, such as freedom of speech or ownership of property, in civil society.

This essay is about the substantive connotations of the notion of "right" that …

Religious Convictions And Lawmaking, Kent Greenawalt

Faculty Scholarship

In this Article, presented as the 1985-86 Thomas M. Cooley Lectures at the University of Michigan School of Law on March 10-12, 1986, Professor Greenawalt addresses the role that religious conviction properly plays in the liberal citizen's political decisionmaking in a liberal democratic society. Rejecting the notion that all political questions can be decided on rational secular grounds, Professor Greenawalt argues that the liberal democratic citizen may rely on his religious convictions when secular morality is unable to resolve issues critical to a political decision. The examples of animal rights and environmental protection, abortion, and welfare assistance illustrate situations where …

Legal Informality And Redistributive Politics, William H. Simon

Faculty Scholarship

Until recently, one of the most consistent themes in both right and left critiques of the legal system has been the repudiation of procedural formality, that is, of specialized, rule-bound procedures. The left critique portrayed formality as facilitating the manipulation of the legal system by the privileged to the disadvantage of others. Both right and left critiques portrayed formality as expressing and fostering alienation and antagonism.

In recent years, however, attitudes toward formality on the left have become increasingly complex and ambivalent. This development may be partly a reaction to the rising prominence of a conservative rhetoric that links proposals …

The Federal Election Campaign Act And The 1980 Election, Richard Briffault

Faculty Scholarship

During the 1970's Congress and the Supreme Court paid the most sustained attention in American history to the financing of federal election campaigns. Congress passed a succession of measures, known collectively as the Federal Election Campaign Act ("FECA" or the "Act"), closely regulating the activities of candidates, parties, private organizations, and individuals in raising and spending campaign money.

Prior to FECA, election finance was largely an extension of the private marketplace. Campaigns were funded through private, voluntary contributions to parties and candidates, with donors contributing to the extent of their interest and wealth, and private economic inequalities were replicated in …

The Burger Court And "Our Federalism", Henry Paul Monaghan

Faculty Scholarship

Dicey derided federal government as "weak government;" others have found genius lurking in its institutional arrangements. But most students, as Professor S. R. Davis's illuminating little book makes clear, have considerable difficulty in identifying what federal government is, whether the concept is approached analytically, legally, descriptively or normatively. American lawyers are not inclined to pursue such inquiries too far. For, like Justice Black, they are concerned only with "Our Federalism" and, like Justice Stewart and obscenity, they know it when they see it. Moreover, American lawyers have, in large measure, confined their attention to one specific component of "Our Federalism;" …

Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan

Faculty Scholarship

Imagine a cold morning early in February. Slowly sipping coffee in an effort to awaken fully, you are reading through the Supreme Court advance sheets. You come across the following brief opinion:

PER CURIAM. Fisher v. Rye Co., No. 81-1, and First Savings Bank v. Smith, No. 81-2. These petitions for certiorari have been consolidated for disposition in a single opin-ion. No. 81-1 challenges an Executive Order that, in an effort to combat gender-based discrimination, requires government contractors to adopt affirmative action programs. No argument is made that the Executive Order is authorized by statute. Concluding that the …

Militants, Moderates, And Social Change, Michael I. Sovern

Faculty Scholarship

The thesis of this paper is a simple generalization: To the extent that social protest draws attention to its form rather than to the grievance it seeks to redress, it is likely to be unproductive. I add a quick qualification. In offering this generalization, I am assuming that the protester is genuine in seeking to redress one or more grievances and that he is not using the grievance as a subterfuge to pick a fight. If the purpose of the protest is in fact to provoke a repressive response, then, of course, my generalization is inapplicable.

We obviously have a …