Law and Politics Commons^™

Reflections On Bush V. Gore: The Role Of The United States Supreme Court, David Boies

Florida A & M University Law Review

No abstract provided.

Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner

Faculty Scholarship

A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements than …

Kyoto Or Not, Here We Come: The Promise And Perils Of The Piecemeal Approach To Climate Change Regulation In The United States, Randall S. Abate

Journal Publications

Climate change is a pervasive, yet controversial, problem. During the six months leading up to the Kyoto negotiations, President Clinton faced a major challenge when he tried to rally support at home for binding reductions on GHG emissions. Despite political and industry concerns about its potential economic impacts, the United States signed the Kyoto Protocol; however, the Bush administration withdrew from the Protocol in 2001. Part I of the Article analyzes the U.S. federal regulatory approach to climate change. Part II explores representative state, regional, and local attempts to combat climate change, whereas Part III describes voluntary compliance initiatives in …

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of …

The Politics Of Same-Sex Marriage Politics, Katherine M. Franke

Faculty Scholarship

In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and …

Gendered Subjects Of Transitional Justice, Katherine M. Franke

Faculty Scholarship

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and …

Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay summarizes and perhaps extends slightly some important recent work, mostly by political scientists, on the structural relation between the array of political power in a nation's nonjudicial branch or branches and the way in which judicial review is exercised in relatively stable democracies. Robert Dahl's classic article identified one such relation. According to Dahl, "[e]xcept for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance." What, though, if there is no "dominant" national political …

A Response To Goodwin Liu, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that …

Fleming V. Guiliani, Christopher G. Boies

NYLS Law Review

No abstract provided.

Introduction, Anita Bernstein, Marc Galanter, Tanina Rostain

NYLS Law Review

No abstract provided.

Law, Markets And Democracy: A Role For Law In The Neo-Liberal State, Alfred C. Aman, Jr.

NYLS Law Review

No abstract provided.

Foreword, Richard B. Collins

Publications

No abstract provided.

Why Kelo Is Not Good News For Local Planners And Developers, Daniel H. Cole

Articles by Maurer Faculty

When the Supreme Court announced its 2005 decision in Kelo v. City of New London, few legal scholars were surprised at the outcome, which was premised on precedents extending back to the middle of the 19th century. Legal scholars were surprised, however, by the intense political reaction to Kelo (fueled substantially by Justice O'Connor's hyperbolic dissent), as property-rights advocates, legislators (at all levels of government), and media pundits assailed the ruling as a death knell for private property rights in America.

Kelo's combination of relative legal insignificance and high political salience makes it an interesting case study in cross-institutional dynamics, …

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

Articles

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, …

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …

Singapore: A Tax Compact For The Future?, Eugene Kheng Boon Tan

Research Collection Yong Pung How School Of Law

No abstract provided.

The Role Of Citizens And The Future Of International Law: A Paradigm For A Changing World, Avnita Lakhani

Cardozo Journal of Conflict Resolution

Time is on our side and security is to be found, only if we would have a change of heart about the role that citizens can play in the future of international law. True, citizens do play a role in the development and enforcement of domestic laws, especially in more democratic and Western societies. Citizens have also had significant influence in the development of international law. However, citizens (i.e. non-state actors) have not had a direct hand in the enforcement of international law through private action as accorded to state-actors (i.e. governments). This means that citizens, in most cases, have …

Constitutional Law—Fourteenth Amendment—The Path Leads To Nowhere: The Supreme Court Re-Examines The Trek Through The Political Thicket. Vieth V. Jubelirer, 541 U.S. 267 (2004)., Vanessa L. Kinney

University of Arkansas at Little Rock Law Review

No abstract provided.

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international …

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

The Cultural, Political, And Legal Climate Behind The Fight To Stop Trafficking In Women: William J. Clinton's Legacy To Women's Rights, Susan Tiefenbrun

Cardozo Journal of Equal Rights & Social Justice

The article examines the Clinton Administration's significant contributions to advancing women's rights, particularly through landmark legislation such as the Family and Medical Leave Act (FMLA) and the Trafficking Victims Protection Act (TVPA). These efforts, including the appointment of women to high office, reflect a cultural shift toward valuing women's roles and protecting them from exploitation. The TVPA, reauthorized under subsequent administrations, has had a lasting domestic and international impact in combating human trafficking and supporting victims. The article highlights the importance of legislative and judicial approaches in addressing violence against women and promoting gender equality.

The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah S. Purdy

Faculty Scholarship

Political thinkers have long worried that freedom might be selfundermining, tending to erode the liberal rights and democratic politics that form its foundations. The argument has ancient and modern versions, versions of the political left and of the right. No doubt the only adequate answer is the sum of the answers to many particular questions: whether and when popular elections undermine liberal rights, how free markets enhance or undermine democracy, and so forth. In this article, I address an emerging problem in a central area of contemporary freedom: reproductive autonomy. I ask whether reproductive autonomy can undermine the political conditions …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Publications

No abstract provided.

Viewpoint: Legislating Without Deliberation, Carl W. Tobias

Law Faculty Publications

No abstract provided.

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

We The People's Executive, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Perhaps to no one’s surprise, a recent survey found that most Americans know far more about television hits than they know about the United States Constitution. For instance, 52% of Americans surveyed could name at least two characters from The Simpsons, and 41% could name at least two judges from American Idol. Meanwhile, a mere 28% could identify more than one of the rights protected by the First Amendment.

Surveys such as this help clear up one of the apparent mysteries of the last five years: How did we change so quickly from a nation in which the …

Peace In The Valley: For Chris Iijima, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

The first time I saw Chris, he was speaking at a meeting of the East Coast Asian American Student Union, a semi-political but largely social gathering of college kids. I have learned over the years that law schools are adept at finding faculty of color who are smart and ineffectual. So, frankly, I was not expecting much when this Professor Iijima got up to talk. I was concentrating on preparing my own remarks, when I was hit by the whirlwind that is the public Chris Iijima. He got up and assumed the posture of a pugilistic grizzly bear. He actually …

Some Middle-Age Spread, A Few Mood Swings, And Growing Exhaustion: The Human Rights Movement At Middle Age, Penelope Andrews

Articles & Chapters

This paper was presented at a symposium, "The Scholar as Activist", dedicated to the work of Nadine Strossen, President of the ACLU. This paper focuses on the subject of international human rights law and the engagement of scholars as activists in this area of law. At fifty-plus years, and therefore soundly middle aged, the global human rights project today provides occasion for reflection and evaluation. This paper observes that human rights have increasingly become the language of progressive politics. In many ways, this focus on human rights globally echoes the struggle for civil liberties and civil rights in the United …

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 percent clause. …

Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley

Faculty Scholarship

No abstract provided.