Law and Politics Commons^™

The Politics Of Comparative Constitutional Inquiry: At The Crossroads Of Law, Political Science, And Ideology, Michel Rosenfeld

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No abstract provided.

Solving The Moro Problem: Legalizing The Bangsamoro Peace Process, Gene Carolan

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The purpose of this paper is to highlight the structural features that are proving central to the stability of the 2014 Comprehensive Agreement on the Bangsamoro between the Government of the Philippines and the Moro Islamic Liberation Front, and those features that were detrimental to its predecessors.

This paper finds that a more highly legalized approach to peace-making has resulted in greater agreement stability in the Philippines. More precise in detail and inclusive in scope, the legal nature of the 2014 Comprehensive Agreement has made it more responsive to the root causes of the conflict, and resilient to incidents that …

Controlling Presidential Control, Kathryn A. Watts

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Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng, Katherine Cheng, Katherine Cheng

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This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Modernist Forms Of Thinking And Their Critics In Mid-Twentieth Century America (Book Review), Kunal Parker

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No abstract provided.

Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley

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Accusations of illegality have dogged the Obama Administration's efforts to implement the Affordable Care Act (ACA), the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some of the accusations have merit; indeed, it would be surprising if they did not. Even as the ACA's rollout has exposed unanticipated difficulties in the statutory design, congressional antipathy to health reform has precluded looking to the legislature to iron out those difficulties. To secure his principal achievement, President Obama has repeatedly tested the limits of executive authority in implementing the ACA. Six years after its enactment and two …

The Revival Of Climate Change Science In U.S. Courts, William H. Rodgers, Jr., Andrea K. Rodgers

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Science never has been the obstacle to the recognition of climate change. Since Arhennius did his original calculations in 1896, the scientific world was quite aware of the prospect that industrial-age levels of carbon dioxide pollution would result in increasing global temperatures and acidification of the world’s oceans. The brilliant—and striking—graphical display that we know today as the Keeling Curve started in 1957, and year after year it records the relentless upward march of these atmospheric pollutant loadings.

Through the years, necessarily, a vast number of scientific warnings, publications, findings, and predictions would be offered to the public at large, …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

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Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

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American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament—and to rectify it—is to pay more attention to the role that organized wealth plays in our system of checks and balances. This Article shows that the increasing concentration of wealth and political …

Three Words And The Future Of The Affordable Care Act, Nicholas Bagley

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As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort …

All I Really Need To Know About Antitrust I Learned In 1912, Daniel A. Crane

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Herbert Hovenkamp has indisputably earned the deanship of contemporary antitrust scholarship. One could point to many different attributes by which he has earned his laurels: fantastic scholarly productivity; clarity and precision in the craft of writing; analytical depth in both law and economics; moderation in a field apt to polarization; and custodianship of the influential Areeda treatise. In this Essay, I hope to honor another quality that has contributed significantly to Herb’s tremendous success as an antitrust scholar—his engagement with history. Much contemporary antitrust scholarship bursts with excitement at the discovery of new phenomena or theories that in all actuality …

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

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The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …

The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson

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As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …

Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak

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We cannot wish (or think) away the modern state any more than the postwar generation could wish away atomic power. And we cannot ignore the state in our efforts to come to terms with modern economy and society any more than we can ignore equally difficult concepts like modern capitalism or modern law. Attempts to try to reckon with modernity in lieu of hard thinking about such abstract concepts will probably end up deploying some overdetermined and cartoonish causation of a mainly biographical or interest-group sort. Or, like libertarianism, neoliberalism, or other popular anti-statist credos, they will leave us with …

Beyond Stateless Democracy, Stephen W. Sawyer, William J. Novak, James T. Sparrow

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Pierre Bourdieu began his posthumously published lectures “On the State” by highlighting the three dominant traditions that have framed most thinking about the state in Western social science and modern social theory. On the one hand, he highlighted what he termed the “initial definition” of the state as a “neutral site” designed to regulate conflict and “serve the common good.” Bourdieu traced this essentially classical liberal conception of the state back to the pioneering political treatises of Thomas Hobbes and John Locke.1 In direct response to this “optimistic functionalism,” Bourdieu noted the rise of a critical and more “pessimistic” alternative—something …

Abortion Distortions, Caroline Mala Corbin

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No abstract provided.

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

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Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

Election Law's Lochnerian Turn, Ellen D. Katz

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This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

Hollowed-Out Democracy, Kate Andrias

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Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

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No abstract provided.

The Powers Of Congress And The President On Matters That Affect U.S. Foreign Affairs, Malvina Halberstam

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No abstract provided.

The Field In Ireland In 2014, Tom Dunne

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Repossessions are an important part of recovery in the housing market

The Conventional Option, Gregory Koger, Sergio J. Campos

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The filibuster in the United States Senate effectively imposes a supermajority vote requirement to pass any legislation. Both supporters and critics of the filibuster agree that any filibuster reform would require extraordinary measures. In contrast to this consensus, this Article describes a method we call the "conventional option," which allows the filibuster to be reformed by a simple majority of senators at any time using ordinary Senate procedures. As we show below, a majority of senators using the conventional option (1) cannot be filibustered; (2) can act on any day the Senate is in session (not just at the beginning …

The President's Enforcement Power, Kate Andrias

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Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …

Child Sex Abuse In Institutional Settings: What Is Next, Marci A. Hamilton

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Reinforcing taboos have kept the topic of child sex abuse in institutions from public discussion in the United States until recently. Those walls are now crumbling, and we are entering an era of better public information and discourse, which, in turn, is fueling a movement for the improvement of the legal system's protection of children. In this Article, I will examine the taboos and the impact of their fall, and then chart the legal reforms that are flowing from their downfall.

Rulemaking As Politics, Thirty Years On, Michael Herz

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No abstract provided.

Government Policies Must Keep Business On Tight Rein, Paul Donnelly, John Hogan, Brendan O'Rourke

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The unethical behaviour that helped create the economic and banking crisis has caught the attention of some parties.

After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein

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How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. …

The Geometry Of Inside And Outside, David Abraham

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These are two important books. The Citizen and the Alien provides a rigorous and illuminating scrutiny of the conundrum faced by making out current concept and politics of citizenship work within liberal moral and political philosophy. The Birthright Lottery, a book with many virtues, recasts birthright citizenship in a manner analogous to the end of entailed property transmission brought about by liberal reform. This essay suggests that Bosniak is unduly pessimistic about bounded communities and that Shachar is unduly optimistic about the relationship between property rights and democracy.

Levinson Is To Mr. Justice "Isaiah" As St. Paul Was To The Prophet Isaiah, Richard H. Weisberg

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The article critiques Professor Sanford Levinson's defense of compromise in constitutionalism, arguing that while compromise is ubiquitous, it is not inherently just or morally sound. The author, Richard Weisberg, contends that Levinson's flexible hermeneutic approach risks degrading textual integrity and ethical standards, particularly when compromise is elevated to a norm. Weisberg advocates for maintaining the integrity of sacred and legal texts, emphasizing the dangers of interpretive flexibility, especially in emergencies, and draws parallels to historical examples like Vichy France's complicity in Nazi policies.