Law and Politics Commons^™

Implicit Bias, Election '08, And The Myth Of A Post-Racial America, Jeffrey J. Rachlinski, Gregory S. Parks

Cornell Law Faculty Publications

The election of Barack Obama as the forty-fourth President of the United States signals that the traditional modes of thinking about race in America are outdated. Commentators and pundits have begun to suggest that the election of a black man to the nation's highest office means that the United States has entered a post-racial era in which civil rights laws are becoming unnecessary. Although President Obama's election means that explicit, open anti-black racism has largely faded, an analysis of the campaign's rhetoric and themes suggests that unconscious racism is alive and well. Rather than suggest a retreat from traditional civil …

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Cornell Law Faculty Publications

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable.

In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …

False Comfort And Impossible Promises: Uncertainty, Information Overload, And The Unitary Executive, Cynthia R. Farina

Cornell Law Faculty Publications

The movement toward President-centered government is one of the most significant trends in modern American history. This trend has been accelerated by unitary executive theory, which provided constitutional and “good government” justifications for what political scientists have been calling the “personal” or “plebiscitary” presidency.

This essay draws on cognitive, social and political psychology to suggest that the extreme cognitive and psychological demands of modern civic life make us particularly susceptible to a political and constitutional ideology organized around a powerful and beneficent leader who champions our interests in the face of internal obstacles and external threats. The essay goes on …

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than …

Obama And The New Age Of Reform, Aziz Rana

Cornell Law Faculty Publications

No abstract provided.

Barack Obama, Implicit Bias, And The 2008 Election, Jeffrey J. Rachlinski, Gregory S. Parks

Cornell Law Faculty Publications

The election of Barack Obama as the forty-fourth president of the United States suggests that the United States has made great strides with regard to race. The blogs and the pundits may laud Obama’s win as evidence that we now live in a “post-racial America.” But is it accurate to suggest that race no longer significantly influences how Americans evaluate each other? Does Obama’s victory suggest that affirmative action and antidiscrimination protections are no longer necessary? We think not. Ironically, rather than marking the dawn of a post-racial America, Obama’s candidacy reveals how deeply race affects judgment.

Social Movements And The Ethical Construction Of Law, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Cornell Law Faculty Working Papers

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz

Cornell Law Faculty Publications

Do members of the House of Representatives have a constitutional right to resign their seats? This Article uses that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of senators, presidents, and vice presidents, but, curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation when there is …

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

Taking Distribution Seriously, Robert C. Hockett

Cornell Law Faculty Working Papers

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing.

To attend systematically to the inter-translatability of maximization language on …

Unconscious Bias And The 2008 Presidential Election, Gregory S. Parks, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The 2008 presidential campaign and election will be historic. It marks the first time a Black person (Barack Obama) and a woman (Hillary Clinton) have a real chance at winning the Presidency. Their viability as candidates symbolizes significant progress in overcoming racial and gender stereotypes in America. But closer analysis of the campaigns reveals that race and gender have placed enormous constraints on how these two Senators can run their candidacy. This is not surprising in light of the history of race and gender in voting and politics in America. But what is perhaps more surprising is how the campaigns …

Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Gregory S. Parks, Jeffrey J. Rachlinski, Richard A. Epstein

Cornell Law Faculty Publications

The election of Barack Obama marks a significant milestone for race relations in our nation—on this much our debaters agree. The meaning of this milestone for the future of race-based policies, such as affirmative action and antidiscrimination laws, is where they disagree. Dr. Gregory Parks and Professor Jeffrey Rachlinski argue that any announcement of the arrival of a “post-racial America” is premature, as the presidential campaign actually revealed an implicit racial bias present in “most white adult brains.” The stereotypical criticisms of Obama, explicit racial references by supporters of opposing candidates, and “deeply racially stratified voting” were, in fact, “reflection[s] …

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Cornell Law Faculty Publications

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all.

This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …

Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" And Others Don't?, Michael C. Dorf

Cornell Law Faculty Publications

Why do some Republican Supreme Court Justices evolve over time, becoming more liberal than they were - or at least more liberal than they were generally thought likely to be - when they were appointed, while others prove to be every bit as conservative as expected? Although idiosyncratic factors undoubtedly play some role, for every Republican nominee since President Nixon took office, federal executive branch service has been a reliable predictor. Nominees without it have proved moderate or liberal, while those with it have been steadfastly conservative.

This Essay demonstrates the correlation for all twelve Republican appointees during this period …

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf

Cornell Law Faculty Publications

Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold …

Our Undemocratic Constitution: Where The Constitution Goes Wrong (And How We The People Can Correct It), Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Use It Or Pretenders Will Abuse It: The Importance Of Archival Legal Information, Theodore Eisenberg

Cornell Law Faculty Publications

Archival information about the legal system should inform policymaking. Despite claims of soaring civil damages awards, modem historical data show no to little growth in tort awards and no real growth in punitive damages awards. The data also show a dramatic forty-year decline in trial rates from more than ten percent of case dispositions to less than two percent. The decline needs to be explained in part by using archival data. Contrary to perceptions underlying the Class Action Fairness Act of 2005, little systematic evidence exists that state and federal courts process class actions significantly different. These results contradict the …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Cornell Law Faculty Working Papers

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE).

A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

Identity Politics And The Second Amendment, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Overview Of Legal Systems In The Asia-Pacific Region: India, Navoneel Dayanand

Overview of Legal Systems in the Asia-Pacific Region (2004)

This article provides a general description of the legal system of India. It further discusses aspects of legal education and legal practice in that country.

Interpretive Holism And The Structural Method, Or How Charles Black Might Have Thought About Campaign Finance Reform And Congressional Timidity, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Afghanistan: Prospects For Peace And Democratic Governance And The War On Terrorism, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.

Invisible Foundations: Science, Democracy, And Faith Among The Pragmatists, Patrick J. Deneen

Pragmatism, Law and Governmentality

Today science is almost universally regarded as an ally of democracy. Religion - once viewed by Tocqueville as the great support of democratic mores, in contrast to the materialism of then-contemporary atheists who threatened to undermine democratic commitments - is now viewed by many as antithetical to the openness and provisionality that marks both science and democracy. As framed by the neo-pragmatist Richard Rorty, religion is a "conversation-stopper," the very definition of anti-democratic, anti-scientific anti-pragmatism.

Whereas a pragmatic form of faith, notably "democratic faith," secures belief in an ever improving future, the "politics of skepticism" is reinforced by the initial …

The Democratization Process And Structural Adjustment In Africa, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.

The Political Economy Of School Choice, Michael Heise, James E. Ryan

Cornell Law Faculty Publications

This paper examines the political economy of school choice and focuses in particular on the role of suburbanites. This group, which we contend is the most important and powerful stakeholder in choice debates, has yet to receive much attention in the commentary. It turns out that suburbanites, by and large, are not wild about school choice, either public or private. Suburbanites are largely satisfied with the schools in their neighborhoods and want to protect the physical and financial independence of those schools (as well as their property values, which are tied to the perceived quality of local schools). School choice …

Getting Beyond Cynicism: New Theories Of The Regulatory State. Foreword: Post-Public Choice?, Cynthia R. Farina, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff

Cornell Law Faculty Publications

The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not …

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Place Of Form In The Fundamentals Of Law, Robert S. Summers

Cornell Law Faculty Publications

The author explains that there is scope for a general theory about the nature and place of form in the fundamentals of law. Form organizes the institutions, rules and other varieties of law, and the system as a whole. All such constructs have non-formal elements, too, but form unifies each construct and provides its criteria of identity. Appropriate form makes a system of law possible. It also tends to beget good content in the law. It is indispensable to the basic needs of a legal system, and when such an end is organizational, as with democracy, liberty, and the rule …