Law and Politics Commons^™

The Scope Of Executive Power In The Twenty-First Century: An Introduction, Robert D. Sloane

Faculty Scholarship

This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of …

"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert

Michigan Law Review

The 1930 Census reduced Minnesota's apportionment in the U.S. House of Representatives from ten to nine, requiring the state to draw new congressional districts. The Republican-led state legislature passed a gerrymandered redistricting bill in an attempt to insulate its nine incumbents in the state's delegation from the party's expected loss of the statewide popular vote to the insurgent Farmer-Labor Party. When the Farmer-Labor Governor, Floyd B. Olson, vetoed the redistricting bill, the legislature claimed the bill could take effect without the governor's signature. In Smiley v. Holm, the U.S. Supreme Court decided that the veto was effective and that …

Federal Grants, State Decisions, Brian Galle

Georgetown Law Faculty Publications and Other Works

The authority to raise and spend money is one of the most expansive and fundamental of all Congress' enumerated powers, particularly when Congress chooses to impose conditions on those who wish to receive its cash. The consensus modern view of this conditional spending is that its unfettered use threatens the diversity and accountability goals of our federalism. As a result, nearly all commentators support either direct or indirect judge-made limits on conditional spending. These claims, I argue, rest on a set of largely unexamined assumptions about the political motivations, budgetary situation, and incentives of the state officials who must decide …

Reflections On The New York City Law Department, Edward I. Koch

NYLS Law Review

No abstract provided.

Lawyers For Government Have Unique Responsibilities And Opportunities To Influence Public Policy, Frederick A.O. Schwarz Jr.

NYLS Law Review

No abstract provided.

Reflections On My Years As Corporation Counsel, Peter L. Zimroth

NYLS Law Review

No abstract provided.

The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty

NYLS Law Review

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

The Independence Of The Law Department, Jeffrey D. Friedlander

NYLS Law Review

No abstract provided.

Taking The Offensive: New York City’S Affirmative Suits, Gail Rubin

NYLS Law Review

No abstract provided.

Defending The Historian’S Art: A Response To Paul A. Crotty’S Attack On Fighting For The City, William E. Nelson

NYLS Law Review

No abstract provided.

From John F. Kennedy’S 1960 Campaign Speech To Christian Supremacy: Religion In Modern Presidential Politics, Stephen A. Newman

NYLS Law Review

No abstract provided.

The Collateral Protection Of Rights In A Global Economy, Sheldon Leader

NYLS Law Review

No abstract provided.

Reclaiming Egalitarianism In The Political Theory Of Campaign Finance Reform, Frank Pasquale

Faculty Scholarship

No abstract provided.

Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Gregory S. Parks, Jeffrey J. Rachlinski, Richard A. Epstein

Cornell Law Faculty Publications

The election of Barack Obama marks a significant milestone for race relations in our nation—on this much our debaters agree. The meaning of this milestone for the future of race-based policies, such as affirmative action and antidiscrimination laws, is where they disagree. Dr. Gregory Parks and Professor Jeffrey Rachlinski argue that any announcement of the arrival of a “post-racial America” is premature, as the presidential campaign actually revealed an implicit racial bias present in “most white adult brains.” The stereotypical criticisms of Obama, explicit racial references by supporters of opposing candidates, and “deeply racially stratified voting” were, in fact, “reflection[s] …

Taxes And The 2008 Us Election, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley

Faculty Scholarship

Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the “object and purpose” of the treaty until such time as it makes clear its intent not to become a party …

Public Employee Speech, Categorical Balancing And § 1983: A Critique Of Garcetti V. Ceballos, Sheldon H. Nahmod

University of Richmond Law Review

I propose to discuss Garcetti's First Amendment reasoning as well as the implications of the § 1983' setting in which Garcetti and other public employee free speech cases typically arise. After briefly setting out the Court's opinion and the three dissenting opinions, I begin by addressing the pros and cons of Garcetti, and in the course of so doing, I discuss the prior Pickering-Connick landscape that Garcetti so significantly altered. I consider the deeper First Amendment implications of Garcetti, including itsuse of categorical balancing to create an absolute immunity fromFirst Amendment liability for employer discipline based on job-required public employee …

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Faculty Scholarship

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these state-based reform options. Categorically rejecting all state-based reform is …

The Many Meanings Of "Politics" In Judicial Decision Making, Bradley W. Joondeph

Faculty Publications

This essay seeks to untangle the many possible meanings of "politics" in descriptions of judicial behavior. Part I sets out ten possible conceptions of the term, briefly discussing some examples and their empirical foundations. My goal is mostly descriptive (rather than normative), though it is apparent that some conceptions are more useful than others. In all events, claims about the political influences on judicial behavior must be specific about the phenomena they seek to describe. For given the many possible meanings of politics, accounts that lack such specificity are largely vacuous.

Part II builds on this discussion to make two …

Democracy In Practice: Lessons From New England, Madhawa Palihapitiya, Kevin Dye

Massachusetts Office of Public Collaboration Publications

Political decision-making by elites require some form of civilian participation to regain legitimacy. Increasingly groups of Citizens do not trust in political elites and are increasingly frustrated by their behavior. When faced with the problem of diversity, even established democracies face problems of managing diversity. In the global context differences of opinion, culture, religion etc has defined many of the New Wars (Kaldor 1999). In the United States many non-state and semi-governmental organizations have developed programs to increase public knowledge of the legislature and its decision-making processes. The ultimate purpose of this is to exercise some control over state power. …

Lobbying And Campaign Finance: Separate And Together, Richard Briffault

Faculty Scholarship

The relationship between lobbying and campaign finance is complex, contested, and changing. Lobbying and campaign finance are two important forms of political activity that combine money and communication in ways that have significant implications for democratic self-government. The two practices frequently interact and reinforce each other, with individuals, organizations, and interest groups deploying both lobbyists and campaign money to advance their goals. Congress, in 2007, for the first time explicitly recognized the intersection of campaign finance and lobbying when it adopted legislation specifically regulating the campaign finance activities of lobbyists. At roughly the same time, several of the leading candidates …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …

Beyond Discretion: Prosecution, The Logic Of Sovereignty, And The Limits Of Law, Conor Clarke, Austin Sarat

Scholarship@WashULaw

Today it is widely recognized in both academic literature and the main-stream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality. By drawing on Carl Schmitt and …

Structure And Integrity, Susan Carle

Scholarly Articles in Law Reviews & Journals

In this Review Essay of David Luban's Legal Ethics and Human Dignity, I argue that although Professor Luban has not had much to say until now about "structural" concerns - namely, how lawyers' locations within institutions that organize access to power shape or should shape those lawyers' conduct - in his most recent work, another approach slips in as a supplement to his individualist framework. In this emerging supplement, structural concerns become increasingly important. Although individual integrity continues to matter most in Professor Luban's world view, it increasingly matters in the context of structural relations in which lawyers' ethical duties …

Resisting The Socialist Fetish, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

The Legislative Median And Partisan Policy, Alan E. Wiseman, John R. Wright

Vanderbilt Law School Faculty Publications

We show that the median legislator in the US House is unambiguously closer to the majority party median than to the minority party median. An important implication of this finding is that the median legislator is predisposed to support the majority party's policy agenda. Thus, in the event that the majority party organization exerts no influence over the legislative process, and in the event that all policies then default to the legislative median, policy outcomes will still substantially favor the majority party over the minority. We demonstrate that the legislative median moves predictably toward the majority party in response to …

Brief Comments On An Intermediate Position, Kent Greenawalt

Faculty Scholarship

I am going to start with some clarifications about how I see this topic. Some of what I say may be a bit repetitive, but I think it can be helpful. I do not see this subject as mainly about the force of the Establishment Clause. With Judge McConnell, I think there is a big difference between promoting a religious position, let's say, which I think teaching creationism is, and deciding some moral or political issue based on a religious judgment, such as whether there should be restrictive abortion law. And I do not think this is a question of …

What Is This "Lobbying" That We Are So Worried About?, Lloyd Hitoshi Mayer

Journal Articles

Lobbying is both an essential part of our democratic process and a source of some of our greatest fears about dangers to that process. Yet when Congress, the public, and scholars consider loosening or, as is more often the case, tightening the restrictions on lobbying, they usually assume that everyone knows what activities are in fact lobbying. They therefore overlook the fact that multiple definitions of lobbying currently exist in the various federal laws addressing lobbying. This Article seeks to fill this gap by answering the question of how lobbying should be defined for purposes of the existing federal laws …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …