Law and Politics Commons^™

The Art Of Legislative Lawyering And The Six Circles Theory Of Advocacy, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A "legislative lawyer" is a person who exists in Washington, D.C., and in almost every city and state in this country where legislation and administrative regulations are developed. But most people do not know who that person is or what that person does. In fact, most advocacy organizations that should be hiring legislative lawyers have no idea who a legislative lawyer is.

The author coined the term "legislative lawyer" when she created a Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C. over a decade ago. The author needed to explain to her faculty colleagues what type …

Republican Party Of Minnesota V. White: Should Judges Be More Like Politicians?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Republican Party of Minnesota v. White shows how unrealistic five justices can be about what happens in judicial election campaigns, and also - ironically - about how much judges differ from legislators and others who run for office. This reality was captured concisely by Robert Hirshon, immediate past president of the American Bar Association (ABA) in his statement following the Court's ruling: "This is a bad decision. It will open a Pandora's Box.... " The decision will change judicial election campaigns in such a way that the quality of the pool of candidates for the …

Is The Rehnquist Court An "Activist" Court? The Commerce Cause Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he …

Democracy And Legitimation: A Response To Professor Guinier, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay is a response to Supreme Democracy: Bush v. Gore Redux, an essay by Lani Guinier (2002).

The author critiques Professor Lani Guinier’s essay through a discussion of the maldistribution of wealth in American society, which he argues is accepted by American people thanks to the existence complex structures that allow them to distance themselves from it. He discusses four legitimation structures as he critiques this essay.

Professor Guinier focuses on the belief in meritocracy. For our purposes, we might define a believer in meritocracy as someone who thinks that, in a given society, people get more or less …

The Limits Of Being "Present At The Creation", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Having been invited late to this Symposium and having read fewer than all essays, I offer, (with deep appreciation for the invitation), only mini-comments on three of the many valuable contributions: the essays by Professors Persily, Hasen, and Gerken. But first, at risk of pedantry, may I suggest changing the Symposium's title to something like "Baker and its Progeny .... (or "Baker, doughnuts, and holes"?). Most of the treatment seems to be about the progeny, as surely it should be. While of course everyone knows how far Baker went, what Reynolds did, and what was not done until after Reynolds, …

Judicial Campaign Conduct Committees, Roy A. Schotland, Barbara Reed

Georgetown Law Faculty Publications and Other Works

As the other papers presented at this Symposium make abundantly clear, the problems associated with inappropriate statements and conduct during judicial elections are unlikely to abate anytime soon. Bench and bar leaders across the country are being joined by a growing chorus of members of the media and the public in demands that something be done. As an initial step that requires relatively little yet holds great promise, the authors endorse the use of judicial campaign conduct committees as a means of long-term improvement.

Law And Prudence In The Law Of Justiciability: The Transformation And Disappearance Of The Political Question Doctrine, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay develops the foregoing argument by examining, in Section I, the transformation of the political question doctrine from Baker v. Carr through Walter Nixon v. United States. Section II charts a similar, perhaps even more dramatic transformation of the law of standing. Section I then examines Bush v. Gore, explaining how older doctrines of standing and political questions might have been thought relevant there. It argues as well that the very fact that those doctrines went unmentioned by the Court shows why we must take a historically grounded view of justiciability doctrines. Section IV sketches the historical settings in …

Judicial Elections And Campaign Finance Reform, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In the judicial realm, the issue of campaign finance cuts across all states that use any form of election as part of their selection or retention system, whether the elections are partisan or non-partisan. The raising of money for campaigns is a task that has to be performed in all states that use any form of election. Like many other things that we have discussed today it seems to involve a sort of balancing act. The state certainly has a strong interest in protecting the integrity of its judiciary and encouraging the public perception of the judiciary as an institution …

Tanf Reauthorization: Is Congress Acting On What We Have Learned?, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

There is only one sure way to make something happen in public policy and in politics, and that is to organize. Sometimes external events-the Great Depression, World War II, Vietnam, Watergate, September 11th, Enron, and MCI WorldCom-will make things happen of their own accord. But we can't wait for events to create opportunity, and many such stimuli are in fact things we don't want to happen. So it is up to us. And the time for organizing is not just when an issue is at the forefront. Organizing is needed to build interest and support on issues over a longer …

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

What's So Bad About Bush V. Gore? An Essay On Our Unsettled Election, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

There is a chance that Bush v. Gore may begin a process of laying a more attractive and realistic foundation for constitutionalism than the Official Story provides. The very fact that the Court is not politically independent and that it could not settle the matter in a disinterested, apolitical fashion might set us down a path toward a more mature version of constitutional law. The politically tendentious character of the Coon's reasoning demonstrates that our core constitutional commitments are subject to political manipulation. Ironically, public understanding of this malleability makes our politics more, rather than less, inclusive. It does so …

The Public And Private Lives Of Presidents, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration's difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is in office twenty-four hours a day. He argues that this special constitutional status …

Localism, Self-Interest, And The Tyranny Of The Favored Quarter: Addressing The Barriers To New Regionalism, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This article argues that our nation's ideological commitment to decentralized local governance has helped to create the phenomenon of the favored quarter. Localism, or the ideological commitment to local governance, has helped to produce fragmented metropolitan regions stratified by race and income. This fragmentation produces a collective action problem or regional prisoner's dilemma that is well-known in the local governance literature.

The Vertical Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Standard understandings of the separation of powers begin with the concept of function. The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive …

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …

Commentary, At Issue – House Rules: Is A Supermajority Requirement For Tax Hikes Constitutional? – No, The Framers Had Only A Simple Majority In Mind, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The supermajority requirement undermines the constitutional principles of Article I and separation of powers. Rule XXI is not merely a rule of internal procedure; it determines when bills get presented to the Senate and the president.

Disciplining Congress: The Taxing And Spending Powers, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Our panel will address a topic that goes to the heart of a debate over the nature of humankind: When dealing with governmentsponsored redistribution of wealth, can our elected representatives, to whom the Constitution grants federal taxing and spending authority, be trusted to exercise that authority; or must we place upon them what James Madison referred to as "auxiliary precautions," burdens higher than those imposed by the requirement that they stand for reelection, in the case of the House, every two years, or in the case of the Senate, every six years?

Toward A "Due Foundation" For The Separation Of Powers: The Federalist Papers As Political Narrative, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the …

The Independent Counsel Statute: Bad Law, Bad Policy, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The Watergate scandal-and the crisis in public confidence in government it spawned-left us many legacies, one of which is the Independent Counsel ("IC") statute. Over twenty years after the fact, the "lessons" of the scandal itself continue to be the dominant reference. It is time to evaluate the "lessons" of Watergate's legacies and, in particular, the IC mechanism.

Progressive And Conservative Constitutionalism, Robin West

Georgetown Law Faculty Publications and Other Works

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

Policy, Procedures, And People: Governmental Response To A Privately Initiated Nuclear Test Monitoring Project As A Case Study In National Security Decision-Making, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article applies the Allisonian framework to the U.S. Government's response to a private arms control initiative undertaken in 1986 by the Natural Resources Defense Council (NRDC), an environmental organization. This case lends itself to fruitful analysis for several reasons. First, while it fits the criteria for second-level decisions, it also involves a critical area of international relations-the control of nuclear weapons. Second, the involvement of numerous government agencies in the project presents ample opportunity to examine processes within and among agencies. Third, the reaction of the United States appears, at first blush, to have been ambivalent or inconsistent, for …