Law and Politics Commons^™

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …

Judging Partisan Gerrymanders Under The Elections Clause, Jamal Greene

Faculty Scholarship

Twice in the last two decades, the Supreme Court has come within two votes of declaring partisan gerrymandering – the manipulation of district lines for partisan ends – a nonjusticiable political question. Last Term, in Vieth v. Jubelirer, Pennsylvania Democrats challenged an alleged Republican gerrymander of the state's congressional districts. Four members of the Court thought the question nonjusticiable, and one, Justice Kennedy, thought it justiciable under the Equal Protection Clause but nonetheless rejected the plaintiffs claims. Eighteen years earlier, in Davis v. Bandemer, a three-Justice plurality had held that a political group complaining of partisan gerrymandering – the Democratic …

The Very Idea Of A First Amendment Right Against Compelled Subsidization, Gregory Klass

Georgetown Law Faculty Publications and Other Works

At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right …

Domesticating The Gerrymander: An Essay On Standards, Fair Representation, And The Necessary Question Of Judicial Will, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The U.S. Supreme Court has moved beyond its cautious intervention in Baker v. Carr and now firmly controls the law of democracy. Yet political gerrymandering questions so understood have traditionally proven difficult for the Court to examine properly. The recent Vieth v. Jubelirer is but a further example of this phenomenon. This Essay situates Vieth within the reapportionment revolution and ultimately concludes that the central question in gerrymandering cases is the question of judicial will and whether the Court will choose to exercise its power. This Essay closes with a cautionary note: in light of the Court's general performance in …

American Medicine And The Politics Of Race, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Straw men play a major role in the debate over racial disparity in American medicine. Most have been deployed by the disparities-denying right, but progressives intent on “outing” racism have sent forth their share. This essay flushes out the straw men while attempting to understand the competing moral premises that drive the politics of health care disparity. At bottom, arguments about the scope of disparity and discrimination in medical care are disputes about the appropriate scope of personal responsibility for life circumstances. Further research into the factors that correlate with racial differences in health care can shed light on the …

Social Citizen As “Guest Worker”: A Comment On Identities Of Immigrants And The Working Poor, Frank W. Munger

NYLS Law Review

No abstract provided.

Schiavo And Klein (Symposium), Evan H. Caminker

Articles

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.

Should Ideology Matter In Selecting Federal Judges? Ground Rules For The Debate, Dawn E. Johnsen

Articles by Maurer Faculty

A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging …

Reconsidering The Law Of Democracy: Of Political Questions, Prudence, And The Judicial Role, Luis Fuentes-Rohwer

Articles by Maurer Faculty

In Vieth v. Jubelirer, the U.S. Supreme Court seemed poised to offer the Court's definitive position on political gerrymandering questions. Yet the Court splintered along familiar lines and failed to offer a definitive answer. This Article focuses on the plurality opinion, and particularly its conclusion that judicially manageable standards are wanting in this area. This conclusion is implausible and masks the real question at the heart of the case. The Vieth plurality is best understood by examining the Court's political and prudential concerns, as cabined by the political question doctrine. One understanding is simply that the plurality is making a …

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

Buttletproof Speech: Are Political Books Beyond Litigation's Reach, Emily Kirstine Wacker

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Social Choice, Crypto-Initiaives, And Policymaking By Direct Democracy, Thad Kousser, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang

Seattle University Law Review

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …

The Concept Of Justice In Mediation: A Psychobiography, Ellen Waldman

Cardozo Journal of Conflict Resolution

Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field's history, the notion that justice in mediation consists of fully maximized disputant self-determination holds sway. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants' beliefs and values.

Race, Nation-Building And Legal Transculturation During The Haitian Unification Period (1822-1844): Towards A Dominican Perspective, Charles R. Venator Santiago

Cleveland State Law Review

This paper offers some preliminary reflections on the relationship between law, race, and nation building during the Haitian unification period. My contention is that, while the Haitian occupation can be described as a domination of Santo Domingo, it is also possible to discern some important ways in which Dominicans benefited from this relationship. More importantly, I suggest that there are some important moments where Dominicans participate in the Haitian nation building process. This paper also draws on a critical reading of Fernando Ortiz's notion of legal transculturation as articulated in his book, Cuban Counterpoint, to reflect on the multiple clashes …

Appendix E: Comments By Number, 2005, Us Army Corps Of Engineers

US Government Documents Related to Indigenous Nations

This comments matrix, published in 2005, provides a summary of public comments made in 2005 regarding the proposed return of land to the Three Affiliated Tribes of the Fort Berthold Reservation. These comments were recorded from transcripts of three public meetings held in Bismarck, North Dakota (ND) on May 24; in Dickinson, ND on May 25; and in Williston, ND on May 26. The matrix also includes comments received outside these meetings via email and letter. The land return, based on the Mineral Restoration Act of 1984 (Public Law 98-602), proposed to return a portion of the land taken for …

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Deystone

Publications

No abstract provided.

Executive Power And The Public Lands, Harold H. Bruff

Publications

No abstract provided.

The 527 Problem ... And The Buckley Problem, Richard Briffault

Faculty Scholarship

In the world of campaign finance, 2004 was without a doubt the year of the 527 organization. No other aspect of campaign financing received as much press coverage or public attention as the rise of the 527s. Expenditures by 527s – named after the section of the Internal Revenue Code under which they are organized – active in federal elections amounted to at least $405 million, accounting for more than one-tenth of total federal election spending and perhaps twenty to twenty-five percent of spending in the presidential campaign. Federal Election Commission ("FEC") Chairman Scott E. Thomas recently observed that "[there …

National Identity And Liberalism In International Law: Three Models, Justin Deystone

Publications

No abstract provided.

Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins

Faculty Scholarship

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …