Law and Politics Commons^™

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 …

Norm Theory And The Future Of The Federal Appointments Process, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Re-Valuing Lawyering For Middle-Income Clients, Susan Carle

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The American Prosecutor: Independence, Power, And The Threat Of Tyranny, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

This Article compares the power, practices, and policies of the Independent Counsel with those of ordinary state and federal prosecutors and suggests that the purported distinctions turn out to be illusory. Part I charts the principal structural characteristics of the Independent Counsel and regular prosecutors, with particular focus on prosecutorial discretion and the charging power. This section notes the public outrage over former Independent Counsel Kenneth Starr and argues that the American prosecutor deserves similar scrutiny. Using illustrations from the author’s former experience as a public defender, this Part explains how regular prosecutors engage in the same acts of misconduct …

The Practice Of Redistricting, Gene R. Nichol, Jr.

University of Colorado Law Review

No abstract provided.

Religious Claims And The Dynamics Of Argument, M. Cathleen Kaveny

Journal Articles

This Article investigates the questions whether and when religious claims may enter into public debate about important political issues by considering the purposes of argument in the public square. These purposes include: (1) argument as self-disclosure; (2) argument as persuasion; and (3) argument as bulwark against engagement with the ideas of others. The Article argues that restrictions on the use of religious claims in public deliberations and discussion impede the legitimate functions of public argument as self-disclosing and persuasive activities. In contrast, such restrictions contribute to the use of argument as bulwark, which is arguably destructive to public deliberation in …

Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman

Articles

The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …

Fear And Loathing Of Politics In The Legal Academy, William H. Simon

Faculty Scholarship

In a recent lament about Bush v. Gore, Bruce Ackerman feared that the patent groundlessness of the opinion would convince many of a proposition he attributed to critical legal studies: that law is simply a form of politics.

This remark reflects two tendencies prominent at the Yale Law School in recent years: first, a preoccupation with a now extinct and never very successful movement of left legal academics, and second, a tendency to conflate this movement with the legal conservatism of Jusice Scalia and his collaborators at the University of Chicago and the Rehnquist Court.

These tendencies ride high …

Toward Political Safeguards Of Self-Determination, Gregory P. Magarian

Scholarship@WashULaw

The theorists of the political safeguards of federalism (primarily Herbert Wechsler, Jesse Choper, and Larry Kramer) contend that various features of the American political system are sufficient to protect the values of federalism, obviating the need for federalist judicial review. These theorists have identified constitutional features of the system (i.e., equal representation in the Senate) and extolled subconstitutional features (notably the strength of the major political parties) as guarantors of state prerogatives against the federal government. They have not, however, developed a substantial account of the reasons why state prerogatives need or deserve protection and how those reasons bear on …

The Limits Of Pragmatism In American Foreign Policy: Unsolicited Advice To The Bush Administration On Relations With International Nongovernmental Organizations, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

The Bush Administration has tended to see international nongovernmental organizations in a pragmatic way, as functionally the international equivalent of domestic "volunteer" organizations. This article argues that the Bush Administration ought to see international nongovernmental organizations as organizations seeking to substitute so-called "international civil society," on the one hand, and public international organizations, on the other, for the authority of democratically sovereign states. Looking beyond the particular issues on which international NGOs press political agendas - human rights, environmentalism, etc. - the function of international NGOs is to delegitimize democratic sovereignty in favor of liberal internationalism. The article argues that …

Politics And Denial, Pierre Schlag

Publications

No abstract provided.

How Democratic Are Initiatives?, Richard B. Collins

Publications

No abstract provided.

Nationalized Political Discourse, Robert F. Nagel

Publications

No abstract provided.

Beyond Indian Law: The Rehnquist Court’S Pursuit Of States’ Rights, Color-Blind Justice And Mainstream Values, David H. Getches

Publications

No abstract provided.

Getting Past Democracy, Edward L. Rubin

Vanderbilt Law School Faculty Publications

The tension between our concept of democracy and the government we actually possess is well known, despite our insistent efforts to claim that the term "democracy" accurately describes our governmental system. One area where this tension has been apparent is American constitutionalism. The conflict between our concept of democracy and the institution of judicial review became a political issue when the Supreme Court placed itself in opposition to Progressive Era and New Deal legislation. This same conflict subsequently served as a central concern of the Legal Process School, which indelibly characterized it as the "counter-majoritarian difficulty."' The more far-reaching and …

The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz

Articles

No abstract provided.