Law and Politics Commons^™

The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr.

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This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better?

We know some of these things about all of these laws. I’ll exercise editorial judgment and declare four common features …

The Empty Tomb: Post-Critical Legal Hermeneutics, Peter Goodrich

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The article argues that the decline of critical legal studies (CLS) stems not only from external challenges like tenure wars but also from internal weaknesses, particularly an affective incapacity and failure of collective desire. To revitalize CLS, the article proposes a return to its original mission of social transformation, emphasizing the spiritual and ethical dimensions of legal understanding. It draws on hermeneutics and art history to explore how legal symbols and images shape power dynamics, advocating for a deeper engagement with the invisible, non-law forces that guide legal administration.

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

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Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Constitutional Expectations, Richard A. Primus

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The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Agency Hygiene, Nicholas Bagley

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Prof. Bagley notes that reshaping captured agencies using the structural reforms suggested by Prof. Barkow may be politically infeasible and offers an alternative solution for eliminating interest-group capture. First, he suggests establishing a body within the Executive Branch that proactively investigates and documents capture dynamics. Second, he suggests creating legislative mechanisms that will encourage Congressional action on the body’s recommendations, and perhaps, more provocatively, requiring the Executive Branch to enact any such recommendations in the absence of Congress’s formal objection.

Building The Bottom Up From The Top Down, A. Michael Froomkin

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"Bottom up" governance. "Self-organization." These are among the most talismanic virtue-words of modern political discourse. Yet the reality is that in politics, "self-organization" is rare, being hard to initiate and even harder to sustain. As Oscar Wilde once complained about socialism, it "requires too many evenings." Governance as we tend to know it depends primarily on hierarchical institutions, or on close coordination within small groups. True partnerships, conversations among engaged equals, do not seem to scale. Indeed, whether one believes the fundamental problem to be something about the economics of group formation, the iron law of oligarchy, or something in …

The Politics Of Intellectual Property, Jessica D. Litman

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In May 2005, Keith Aoki invited me to participate on a panel on "The Politics of Copyright Law" at the 2006 Association of American Law Schools ("A.A.L.S. ") mid-year meeting workshop on Intellectual Property in Vancouver, British Columbia. The panel, renamed "The Politics of Intellectual Property," and moderated by Keith, included talks by Justin Hughes, Mark Lemley, Jay Thomas, and me, and it was followed by three concurrent sessions on "The Politics Concerning Moral Rights," "The Politics of Global Intellectual Property, " and "The Politics of Patent Reform." I'm not sure what the organizing committee had in mind when it …

Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson

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The United States’s presidential transition period is too long. Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’” In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows. One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,” and another noted that “everyone . . . ignores the actions of the lame duck.”

Barack Obama, Margarita Lopez Torres, And The Path To Nomination, Ellen D. Katz

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Operating within these regimes, Obama was able to mount a credible--and ultimately successful--challenge to the leadership's choice for the nomination while Lopez Torres could not. This article offers an explanation why. It argues that Obama succeeded where Lopez Torres failed because the nomination process Obama traversed was more penetrable and more contestable than the one Lopez Torres faced.

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

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Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …

Pangloss Responds, Daniel A. Crane

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I am afraid that William Shieber and I are speaking past each other. I agree wholeheartedly with his assertion that anyone who believes that political appointees do not exert a considerable influence over the antitrust agencies is naïve. However, Technocracy and Antitrust does not advance the Panglossian view that the antitrust agencies are apolitical, if by that we mean that robotic machines devoid of human perspective or ideological commitment churn out scientifically predetermined antitrust results.

Political Responses To Supreme Court Decisions, Marci A. Hamilton

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No abstract provided.

Condemnation Without Justification, Douglas A. Kahn

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On August 6-8, 2007, Prof. Neil Buchanan posted in Michael Dorf’s blog (http://michaeldorf.org/; for the blog entry regarding the death tax, see http:// michaeldorf.org/2007/08/dishonest-tax-rhetoric-part-3- of-3.html) a three-part series on what he deemed to be examples of political use of terminology to describe tax issues in a manner that is likely to mislead the public. Prof. Buchanan described this practice as ‘‘dishonest tax rhetoric.’’ He awarded first, second, and third prizes for the most egregious examples of dishonest rhetoric. I, however, found no objection to the usages he considered to be the two worst examples. Let us consider his first and …

Runaway Grand Jury: Activists Attempt To Redefine Obscenity Law In Kansas, Jill Barton

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No abstract provided.

Providing Public Assistance For The Sunshine Law, Jean Manake, Jill Barton

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No abstract provided.

Reviving The Right To Vote, Ellen D. Katz

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Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

Ennobling Direct Democracy, Sherman J. Clark

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In this essay, Professor Clark argues that we should be attentive to the effect that direct democracy might have on our public character. Building upon earlier work, Clark suggests that the initiative in particular threatens to debase us by undercutting a crucial character trait which might best be called "responsibility-taking." The bulk of this essay is devoted to explaining what this means, and why it matters. Why should we care about the effect of political processes on public character? Why is this particular trait important and worth preserving? How is it threatened by direct democracy? In conclusion, and by way …

The Religious Origins Of Disestablishment Principles, Marci A. Hamilton, Rachel Steamer

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No abstract provided.

What Is Rehnquist Federalism?, Marci A. Hamilton

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No abstract provided.

From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz

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LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …

Antidiscrimination Law In The Administrative State, Julie C. Suk

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The article argues that antidiscrimination law in the U.S. should shift its focus from corrective justice, which addresses individual wrongs, to distributive justice, which aims to eradicate systemic inequalities and promote equal opportunities. This shift would require enhancing the role of administrative agencies, such as the EEOC, to enforce antidiscrimination laws more effectively through proactive regulation and rulemaking. The article draws on the British model, where administrative agencies have stronger enforcement powers, to suggest reforms for the EEOC.

Hard Cases And The Politics Of Righteousness, Carl E. Schneider

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The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …

What Does "Religion" Mean In The Public Square?, Marci A. Hamilton

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No abstract provided.

Schiavo And Klein (Symposium), Evan H. Caminker

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When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein,1 notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.

Direct Democracy And The Protestant Ethic, Marci A. Hamilton

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No abstract provided.

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

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By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.

Resurrecting The White Primary, Ellen D. Katz

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An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …

On Aristotelian Criminal Law: A Reply To Duff, Kyron J. Huigens

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No abstract provided.

Lo Stato Di Diritto E La Legittimità Della Democrazia Costituzionale, Michel Rosenfeld

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No abstract provided.

The Internet And The Persistence Of Law, Justin Hughes

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Since legal commentators first confronted cyberspace, three broad stories have emerged to describe the interrelation of law and the Internet: the "no-law Internet," the "Internet as a separate jurisdiction," and Internet law as "translation" of familiar legal concepts. This Article reviews these stories, focusing on how ongoing "translation" is giving way to a growing convergence in Internet law. The Article makes the case for convergence among legal responses to cyberspace and proposes a basic taxonomy for different models of convergence. With this taxonomy, the Article examines the ways in which convergence is occurring, as well as its effects on both …