Law and Politics Commons^™

Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt

Faculty Scholarship

This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.

The Prospects Of Pension Fund Socialism, William H. Simon

Faculty Scholarship

A substantial portion of corporate shareholdings in the United States is held by pension funds that secure retirement benefits for broad segments of the workforce. A number of commentators have argued that the assets secured by these pension funds should be used to promote the creation of a more democratic and egalitarian economy. Specifically, pension assets could be invested in projects that are deemed socially worthwhile, wielded in strategic "corporate campaigns" against companies resisting unionization, or directed toward allowing workers to obtain control over their own companies. This program of employing pension assets in the pursuit of a more democratic …

The Political Economy Of The Wagner Act: Power, Symbol, And Workplace Cooperation, Mark Barenberg

Faculty Scholarship

To shed light on the legal debate over new forms of workplace collaboration, this Article reexamines the origins of the National Labor Relations Act of 1935. Professor Barenberg concludes that the Wagner Act scheme was profoundly cooperationist, not adversarial as is conventionally assumed. Revisionist historiography shows that, contrary to the claims of public choice theorists, Senator Wagner's network of political entrepreneurs was the decisive force in the conception and enactment of the new labor policy, amidst interest group paralysis and popular unrest. Drawing on original archival materials and oral histories, Professor Barenberg reconstructs the progressive ideology of Wagner and his …

Further Reflections On Libertarian Criminal Defense, William H. Simon

Faculty Scholarship

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

Faculty Scholarship

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss

Faculty Scholarship

As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And …

Demarginalizing The Intersection Of Race And Sex: A Black Feminist Critique Of Antidiscrimination Doctrine, Feminist Theory And Antiracist Politics, Kimberlé W. Crenshaw

Faculty Scholarship

One of the very few Black women's studies books is entitled All the Women Are White; All the Blacks Are Men, But Some of Us are Brave. I have chosen this title as a point of departure in my efforts to develop a Black feminist criticism because it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis. In this talk, I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and …

Is Law Politics?, Philip Chase Bobbitt

Faculty Scholarship

Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of …

Warrior Bards, Kevin Mccarthy, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Corruption, Legal Education And Change In West Africa: A Broader View Of Human Rights, Suzanne B. Goldberg

Faculty Scholarship

"Will we ever move again?" I wondered as I sat with my knees jammed into my chin, sore from the long and bumpy ride on the wooden plank which lined the back of a "bush taxi" – the only public transport between villages in Northern Mali. The "taxi" was actually a rusty and roadworn pickup truck packed with more than two dozen men, women and children, more than I ever imagined could fit in the small, flat space between the cab and the tailgate. "Why are we stopping now?" I smiled at myself as I felt a sense of exasperation …

Evaluating Child Care Legislation: Program Structures And Political Consequences, Lance Liebman

Faculty Scholarship

The American political system is not good at choosing among worthy goals and then adopting programs well designed to achieve the desired purposes. Scholars and activists continue to debate the success and failure of the last quarter century of efforts to reduce inequality and achieve other social reforms. But we have no well developed methodology for evaluating proposed programs and attempting to predict their likely consequences.

This Article asks what we know about choosing legal structures for programmatic efforts that seek social change. In particular, it asks whether we can predict relationships between different ways of pursuing public ends and …

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 …

A Theory Of Political Control And Agency Discretion, Randall L. Calvert, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

A major issue in the study of American politics is the extent to which electoral discipline also constrains bureaucrats. In practice, executive agencies operate with considerable independence from elected officials. However,the entire process of policy execution is a game among legislators.the chief executive. and bureaucratic agents. It includes the initial delegation of authority, the choice of policy alternatives,and opportunities for oversight and control. A simple model of this process demonstrates an important distinction between bureaucratic authority and bureaucratic discretion. Indeed.in its simplest form, the model predicts a world in which bureaucrats are the sole active participants in policymaking, but in …

Presidential Influence On Congressional Appropriations Decisions, D.Roderick Kiewiet, Mathew D. Mccubbins

Faculty Scholarship

We investigate the extent to which possession of the veto allows the president to influence congressional decisions regarding regular annual appropriations legislation. The most important implication of our analysis is that the influence the veto conveys is asymmetrical: it allows the president to restrain Congress when he prefers to appropriate less to an agency than Congress does; it does not provide him an effective means of extracting higher appropriations from Congress when he prefers to spend more than it does. This asymmetry derives from constitutional limitations on the veto, in combination with the presence of a de facto reversionary expenditure …

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 …

The Dialectic Of Rights And Politics: Perspectives From The Women's Movement, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

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 …

Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski

Faculty Scholarship

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as …

To Whom Does The Government Lawyer Owe The Duty Of Loyalty When Clients Are In Conflict, William Josephson, Russell G. Pearce

Faculty Scholarship

This Article focuses on the continuing debate on the ethical obligations of government lawyers: do government lawyers represent the people or do they represent a client? The Article explains that the dominant conception that government lawyers represent the people actually results in government lawyers representing themselves. After examining alternative approaches to determining the identity of the government lawyer’s client, the Article concludes that only one approach is consistent with both the ethical rules and our republican system of government. The government lawyer’s client properly understood is an elected official or, in certain cases, an agency head with legal authority independent …

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 Foreign Sovereign Immunities Act And The Pursued Refugee: Lessons From Letelier V. Chile, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Constitutionalism, Bureaucracy, And Corporatism, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

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;" …