Law and Politics Commons^™

Throttling Miranda: Right Wing Ideologues Support The Government Against The Individual, Donald E. Wilkes Jr.

Popular Media

The 1966 Miranda v. Arizona decision is arguably the most important and undeniably the most famous of all U.S. Supreme Court criminal procedure decisions. The noble purpose of this legal landmark is to prevent Americans taken into custody by police on criminal charges from being subjected to improper interrogation practices calculated to compel citizens to incriminate themselves.

Few people realize that since the early 1970s the Supreme Court has been stealthily choking the life out of Miranda. The latest example of this process of slow strangulation occurred a few weeks ago, on June 1, when the Court in Berghuis …

Justifying Subversion: Why Nussbaum Got (The Better Interpretation Of) Butler Wrong, Ori J. Herstein

Cornell Law Faculty Publications

One of the most common critiques directed at deconstructive and poststructuralist theories is that they are amoral – rejecting the validity of the very idea of norms and moral principles as grounds for justifying or criticizing political action and social structures – and that in rejecting the validity of the distinction between what is just and what is unjust, they “collaborate with evil.” By now, an almost canonical example of this common critique is found in Martha Nussbaum’s highly critical essay on the work of Judith Butler, titled The Professor of Parody.3 Here, I focus on Nussbaum’s critique and on …

Free And Fair Elections, Violence And Conflict, Muna Ndulo, Sara Lulo

Cornell Law Faculty Publications

Elections are a defining characteristic of democracy, and thus form an integral part of the democratization process. Over the past decade, electoral systems and processes have become a centerpiece of UN peacekeeping missions and post-conflict democratization projects undertaken by intergovernmental organizations and donor agencies such as World Bank and USAID. The emphasis on elections as an element of UN peacekeeping missions is linked to a shift in focus to state rebuilding (or state creation, as was the case in East Timor). Elections thus provide a means for “jump-starting a new, post-conflict political order; for stimulating the development of democratic politics; …

Seeing The State: Transparency As Metaphor, Mark Fenster

UF Law Faculty Publications

When applied as a public administrative norm, the term and concept “transparency” has two intertwined meanings. First, it refers to those constitutional and legislative tools that require the government to disclose information in order to inform the public and create a more accountable, responsive state. Second, it operates as a metaphor that identifies and decries the distance between the public and the state, and that drives and shapes the desire for a more perfect democratic order. Viewed together, these two meanings both demand efforts to impose legal obligations on the state to be “open” and suggest that such efforts are …

Seeking Civilian Control: Rule Of Law, Democracy, And Civil-Military Relations In Zimbabwe, Jeremiah I. Williamson

Indiana Journal of Global Legal Studies

Rule of law and democratic reform projects often concern lofty questions of constitutional law. But in many countries desperate for reform, deeply entrenched social and political problems present preconditions to any discussion of constitutional reforms aimed at democracy and the rule of law. Zimbabwe is one such nation, which like many others faces the problem of military intervention into domestic politics. This Note examines structural and historical aspects of Zimbabwe's military problem and utilizes the theory of objective civilian control to demonstrate the plausibility of meaningful reforms. In so doing, this Note provides a demonstrative model for reforming civilmilitary relations …

The Political Dynamics Of Mandatory State Constitutional Convention Referendums: Lessons From The 2000s Regarding Obstacles And Pathways To Their Passage, John J. Dinan

Montana Law Review

State Constitutional Convention Referendums

The Empty Tomb: Post-Critical Legal Hermeneutics, Peter Goodrich

Articles

The article argues that the decline of critical legal studies (CLS) stems not only from external challenges like tenure wars but also from internal weaknesses, particularly an affective incapacity and failure of collective desire. To revitalize CLS, the article proposes a return to its original mission of social transformation, emphasizing the spiritual and ethical dimensions of legal understanding. It draws on hermeneutics and art history to explore how legal symbols and images shape power dynamics, advocating for a deeper engagement with the invisible, non-law forces that guide legal administration.

A Turbulent Debate In The Ocean State, Dylan D. Lynch

Senior Honors Projects

Rhode Island has in many ways become the last battleground in a national state-by-state battle over the legalization of gay marriage. It is the last state in the country to not have a definitive stance on whether or not same-sex marriages should be legal and can be performed within the state’s borders, or should be banned and marriage defined solely as the union of a man and a woman. The state is currently undergoing a substantial swing in public support on gay marriage, moving from just 34% in 2004, to 60% in 2009. This rise in support for legalizing gay …

Improving Federal Judicial Selection, Carl Tobias

University of Richmond Law Review

Part I descriptively analyzes the volume. Part II evaluates the many insights Wittes contributes to readers' appreciation of contemporary federal judicial selection. Part III details numerous recommendations.

The Architecture Of Accountability: A Case Study Of The Warrantless Surveillance Program, Kathleen Clark

BYU Law Review

No abstract provided.

Constitutional Caution, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Fallacy Of Neutrality From Beginning To End: The Battle Between Religious Liberties And Rights Based On Homosexual Conduct, Rena M. Lindevaldsen

Faculty Publications and Presentations

The Bible plainly states that everyone must either "bring every thought into captivity to the obedience of Christ" or continue as "enemies in your mind." Un-Biblical thinking, like un-Bibical actions, leads one on a path away from God. Part II of this Article will briefly introduce a Biblical approach to thinking about contemporary issues and discuss how Christians can unwittingly abandon distinctively Biblical thinking under the guise of neutrality. Part III will present a number of cases that highlight the fallacy of neutrality in the battle between religious liberties and rights based on homosexual conduct. Part IV will contend that …

Eliminating Earmarks: Why The Congressional Line Item Vote Can Succeed Where The Presidential Line Item Veto Failed, Jason Iuliano

West Virginia Law Review

No abstract provided.

Judicial Elections And Courtroom Payola: A Look At The Ethical Rules Governing Lawyers' Campaign Contributions And The Common Practice Of "Anything Goes", Nancy M. Olson

Cardozo Public Law, Policy & Ethics Journal

The article examines the potential for bias in judicial decision-making due to campaign contributions from attorneys, highlighting the inadequacies of current ethical regulations and proposing reforms to address these issues. It argues that while the U.S. Supreme Court has acknowledged the risk of bias, existing rules under the ABA Model Rules of Professional Conduct fail to adequately address gray areas, such as uncompensated services and indirect influence. The analysis emphasizes the need for stronger disqualification standards and disclosure requirements to maintain judicial impartiality and public trust.

Confident Uncertainty, Excessive Compensation & The Obama Plan, Michael B. Dorff

Indiana Law Journal

Public outrage at the enormous bonuses TARP recipients paid to senior executives recently prompted the Obama administration to impose sweeping new curbs on executive compensation. Shortly thereafter, Senator Dodd added restrictions on executive bonuses to the stimulus bill President Obama subsequently signed. These are understandable political reactions, but will they achieve the twin goals of reducing executive compensation in recipients of federal assistance while spurring better corporate performance? To examine this question, I analyze excessive compensation as the product of "confident uncertainty, "the tendency of even the most sophisticated actors to place unwarranted confidence in their ability to predict the …

The Pitfalls Of Dealing With Witnesses In Public Corruption Prosecutions, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Fair Measure Of The Right To Vote: A Comparative Perspective On Voting Rights Enforcement In A Maturing Democracy, Janai S. Nelson

Cardozo Journal of International and Comparative Law

The article examines the underenforcement of the right to vote in Ghana, focusing on the exclusion of incarcerated citizens (GICs) despite the 1992 Constitution granting universal adult suffrage. It argues that underenforcement stems from legislative, administrative, and judicial failures, undermining democratic principles. The Ghanaian Supreme Court's decision in OcanseyCHURCIL ruled that denying GICs the right to vote was unconstitutional, aligning with a broader interpretation of voting rights as fundamental. The article emphasizes the importance of explicit constitutional provisions and active enforcement by all government branches to sustain democracy, particularly in emerging democracies.

(Dis)Honest Services Fraud: Bad Men, Like Good Men, Are Entitled To Be Tried And Sentenced In Accordance With Law, Matthew Modell

North Carolina Central Law Review

No abstract provided.

Implicit Bias, Election '08, And The Myth Of A Post-Racial America, Jeffrey J. Rachlinski, Gregory S. Parks

Cornell Law Faculty Publications

The election of Barack Obama as the forty-fourth President of the United States signals that the traditional modes of thinking about race in America are outdated. Commentators and pundits have begun to suggest that the election of a black man to the nation's highest office means that the United States has entered a post-racial era in which civil rights laws are becoming unnecessary. Although President Obama's election means that explicit, open anti-black racism has largely faded, an analysis of the campaign's rhetoric and themes suggests that unconscious racism is alive and well. Rather than suggest a retreat from traditional civil …

Gubernatorial Removal And State Supreme Courts, William E. Raftery

The Journal of Appellate Practice and Process

No abstract provided.

Political Prediction Markets: A Better Way To Conduct Campaigns And Run Government, Andrew S. Goldberg

Cardozo Public Law, Policy & Ethics Journal

The note advocates for the federal government to create an exception to the Unlawful Internet Gambling Enforcement Act (UIGEA) specifically for political prediction markets and proposes that the Commodity Futures Trading Commission (CFTC) regulate these markets under the Commodity Exchange Act (CEA). It argues that political prediction markets, such as Intrade and the Iowa Electronic Markets (IEM), offer significant benefits, including improved information aggregation, accurate election predictions, and potential improvements in campaign strategy and policymaking. The note also highlights the potential for these markets to reduce corruption in campaign finance and provide individuals with a financial hedge against political outcomes.

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Cornell Law Faculty Publications

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable.

In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …

Bringing Home The Bacon: A Two-Pronged Approach To Transparent And Effective Congressional Earmarking, Kimberly S. Pulick

University of the District of Columbia Law Review

Earmarks signify the process of Congressional allocation of Treasury funds to selected projects or persons by individual Congress members without oversight, without any merit-based allocation process, and often, anonymously. It is a process authorized by the United States Constitution which requires Congress to supervise and direct all appropriations of money from the U.S. Treasury.1 Although a large proportion of funds are allocated to federal agencies, the remainder is available to members of Congress for special projects or persons as earmarks. Because members of Congress have had the power to earmark projects and persons without supervision and without attaching their names …

The Future Of God—And Secularism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.”

The Future Of God—And Secularism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

In Defense Of The Post-Partisan President: Toward The Boundary Between "Partisan" Advantage And "Political" Choice, David C. Weiss

Brigham Young University Journal of Public Law

No abstract provided.

Fcc V. Fox: Has The Supreme Court Sanctioned Political Influence In Agency Decision-Making?, Catherine E. Bell

Mercer Law Review

I. INTRODUCTION

Can agencies radically change policy simply because of a change in the White House? The United States Supreme Court's latest decision in FCC v. Fox Television Stations, Inc. suggests that agencies can do exactly that. The Federal Communications Commission (FCC), an independent United States agency, regulates the content of U.S. broadcasting stations. In 2002 and 2003, the FCC and Fox clashed when Fox aired two separate Billboard Music Awards (BMA) shows during which BMA guests uttered isolated expletives. Prior to these incidents, the FCC had never issued an indecency violation to a broadcaster for airing only isolated …

Politics And The Law: Enforcing Judicial Integrity, Anna Talbot

Human Rights & Human Welfare

The ruling by the International Criminal Court (ICC) in early February concerning the arrest warrant for Omar al-Bashir provoked controversy. The role of the Court has been called into question, with Nesrine Malik’s piece surmising that the ruling has shown that the Court is out of touch with political reality. She argues that the decision plays into the hands of authorities who are using it to their own political ends; that the charge of genocide is unjustified; and that the practicalities of enforcement undermine the Court.

Carbon Capture And Storage: An Option For Helping To Meet Growing Global Energy Demand While Countering Climate Change, Victor K. Der

University of Richmond Law Review

No abstract provided.

John Yoo And Jay Bybee Dodge Disciplinary Action But Recall Nuremberg, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.