Law and Politics Commons^™

Legal Dilemmas In Releasing Indonesia’S Political Prisoners, Daniel Pascoe

Indonesia Law Review

In May 2015, in an effort to foster peace in the restive Papua and West Papua Provinces, Indonesian President Joko ‘Jokowi’ Widodo granted clemency to five political prisoners, releasing them from sentences ranging from 20 years to life. The president also stated that there would be ‘a follow-up granting clemency or amnesty to other [political prisoners] in other regions’ (Jakarta Post, 10 May 2015). However, with up to 50 political prisoners still incarcerated in prisons around Indonesia (mostly Papuan and Moluccan separatists), Jokowi’s selective release policy faces several legal and political obstacles. This article outlines the various options open to …

Constitutional Barriers To Congressional Reform, John M. Greabe

Law Faculty Scholarship

Americans celebrate our Constitution as a beacon that can guide us through difficult situations. And justly so. But at times, the Constitution also has stood as a barrier to necessary reform.

Urbanization, Land Rights And Development: A Case Study Of Waterfront Communities In Lagos, Nigeria., Gideon Olaniyi Omoniyi

Master's Theses

The aim of this study is to examine the root causes of forced evictions and displacement through the current urbanization process in Lagos, Nigeria. My particular attention is devoted to the legal complexities and how ethnolinguistic identities shape land laws, influence land tenure, and construct urban citizenship. Through this process, competing claims to land ownership provide fertile ground for forced evictions and displacement. Existing scholars suggest that poor urban residents lack rights to stay in their neighborhoods, while a powerful capitalist class has emerged and dispossessed the poor from their lands. Yet these existing approaches derived from the neoclassical and …

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review: An Interdisciplinary Journal Written and Peer-Reviewed by Mandel Honors College Students at Cleveland State University

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

Uk Governance: From Overloading To Freeloading, Richard Woodward

Articles

The UK's ongoing political turbulence has prompted a reprise of debates from the 1970s when many concluded the country was ungovernable. Then, the most influential diagnosis conceptualised the UK's governance problem as one of ‘overloading’ caused by the electorate's excessive expectations. This article argues that these accounts overlooked another phenomenon besieging UK governance during this period. This phenomenon was freeloading: the withering of government capacity deriving from the ability of actors to enjoy the benefits of citizenship without altogether contributing to the cost. In the interim, these problems have become endemic, not least because of the unspoken but discernible policy …

Restructuring Intellectual Property Jurisdictions Post-Brexit: Strategic Considerations For The Eu And Britain, Alexandra George

Brooklyn Journal of International Law

Britain’s decision to “Brexit” from the European Union has caused great uncertainty and justified concern with respect to intellectual property laws and investments. Post-Brexit arrangements between the European Union and Britain have not yet been determined, and it is unclear whether these will be settled with respect to intellectual property law before Brexit is due to take effect in 2019. With intellectual property intensive industries accounting for 88 percent of EU imports and 90 percent of EU exports, British-EU intellectual property arrangements are the subject of intense interest worldwide as intellectual property owners and users speculate as to the likely …

Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz

Brooklyn Journal of Corporate, Financial & Commercial Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …

Private Prisons And The Need For Greater Transparency: Private Prison Information Act, Libbi L. Vilher

Brooklyn Journal of Corporate, Financial & Commercial Law

Private prisons are not subject to the same regulations as government prisons. Particularly, private prisons are exempt from the requirements set forth in the Freedom of Information Act and its state equivalents, which provide that the public has an enforceable right to request certain records from government agencies. Numerous efforts made by members of Congress to enact the Private Prison Information Act, a bill that would subject private prisons to disclosure laws found in the Freedom of Information Act, have been unsuccessful. Such efforts to strip the veil of secrecy that shades private prisons from public scrutiny are especially important …

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski

Journal of Legislation

No abstract provided.

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Articles

The 2016 election has had significant consequences for American social welfare policy. Some of these consequences are direct. By giving unified control of the federal government to the Republican Party for the first time in a decade, the election has potentially empowered conservatives to ram through a bill to repeal the Affordable Care Act—the landmark “Obamacare” law that marked the most significant expansion of the social welfare state since the 1960s. Other consequences are more indirect. Both the election result itself, and Republicans’ actions since, have spurred a renewed debate within the left-liberal coalition regarding the politics of social welfare …

Sexual Misconduct And Congressional Self-Governance, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Over the past year, a number of prominent politicians (including President Donald Trump) have been publicly accused of serious sexual misconduct and abuse of power. The question therefore has arisen: Can these politicians either be barred from taking office or removed from office on the basis of these accusations?

There is only way to remove a sitting president: impeachment by the House of Representatives and conviction by the Senate. But the topic of impeaching and removing a president warrants its own column. This column will instead focus on what Congress may do when its members and members-elect face charges …

Agency, Equality And Courage: A Case Study Of Women On The Front Lines Of Egypt’S 2011 Revolution, Carol Gray

Biennial Conference: The Social Practice of Human Rights

How were women involved in Egypt’s 2011 revolution/uprising? What role did they play vis-à-vis male activists? To what degree were Egyptian women “equal” during those 18 days in Tahrir Square? These questions will be explored within the context of interviews conducted by this writer in Cairo during and following Egypt’s 18-day revolution (uprising). This essay will explore the public/private sphere split, political consciousness-raising, and gender equality within the context of the stories of Egyptian women on the front lines of protest.

Much of the recent literature on women's protests in Egypt has focused on women's victimization. Critical gender theorist Ann …

Factors Affecting Domestic Refugee Policy Development: An Analysis Of South Korea’S Case, Yun Ju Kang

Biennial Conference: The Social Practice of Human Rights

Asia is no exception to the global refugee crisis. The number of asylum-seekers in Asian countries has escalated very quickly in recent years. In the United States, President Trump's recent executive orders suspended refugee admissions, and hostile immigration policy sparked the controversy about refugees.

The rising number of refugees and migrants from the Middle East, Africa, and South Asia created political conflicts inside the European countries. The refugee issue has emerged as a global problem.

How is the world dealing with these refugee situations? What are the common barriers in designing humanistic refugee policy, and what is the best way …

A Jewish And (Declining) Democratic State? Constitutional Retrogression In Israel, Nadiv Mordechay, Yaniv Roznai

Maryland Law Review

This Article describes and analyzes an increasing trend of contemporary democratic hybridization and constitutional retrogression in Israel. We seek to reconstruct the Israeli case as a state of affairs where a strong leadership, coupled with rising political elites, are leading to a wide-ranging political risk to the constitutional liberal-democracy, to an erosion of its democratic institutions, and to an incremental democratic backslide.

This Article contributes to the evolving recent literature in comparative constitutional law on the constitutional implications of democratic retrogression by characterizing the Israeli case as one that might be categorized as constitutional retrogression. This, as we argue, carries …

The Fragility Of Constitutional Democracy, Yasmin Dawood

Maryland Law Review

Is the survival of constitutional democracy in America at serious risk? Given the actions of the Trump administration, and given the decline of democracy and concomitant rise of authoritarianism the world over, there is genuine cause for alarm. In light of these fears, it is worth remembering that the authors of The Federalist Papers were notably pessimistic about the survival chances of republican government. To what extent have their constitutional design innovations contributed to present woes, and conversely, to what extent will the Constitution ensure the survival of democracy? This Essay argues that while the design of the Constitution is …

The Collapse Of The New Deal Conceptual Universe: The Schmooze Project, Mark A. Graber

Maryland Law Review

No abstract provided.

How A Court Becomes Supreme: Defending The Constitution From Unconstitutional Amendments, Richard Albert

Maryland Law Review

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment restricting political speech or establishing a national religion—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy. In …

Reflections On The Aftermath Of Election 2016, Maxwell L. Stearns

Maryland Law Review

No abstract provided.

Threats To Democratic Stability: Comparing The Elections Of 2016 And 1860, Stuart Chinn

Maryland Law Review

No abstract provided.

Constitutional Crisis And Constitutional Rot, Jack M. Balkin

Maryland Law Review

No abstract provided.

Trump, Trust, And The Future Of The Constitutional Order, Stephen M. Griffin

Maryland Law Review

Sometimes constitutions fail. The unprecedented election of Donald Trump, a populist insurgent who lacks the prior political experience or military service of all presidents before him, is such a sharp break in American historical experience that it raises questions as to whether something is deeply amiss with the constitutional order.

Constitutional failure is not uncommon. A path-breaking global study of national constitutions shows that on average, they last only nineteen years. The U.S. Constitution is an uncommon outlier and, as such, is accounted by many a long-running success story. But could a bell be tolling for American constitutionalism?

In this …

Alternatives To Liberal Constitutional Democracy, David S. Law

Maryland Law Review

The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.

Along these dimensions, the advantages …

Why Donald Trump Is Not Andrew Jackson (And Why That Matters For American Constitutional Democracy), Eric Lomazoff

Maryland Law Review

No abstract provided.

Howell V. Mcauliffe, L. Michael Berman

University of Richmond Law Review

No abstract provided.

Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz

Cornell Law Faculty Publications

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.

This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness …

Protecting The Viability Of The Small Donor In Modern Elections, Ben Miller

Arkansas Law Review

Campaign finance reform stands as one of the most important issues in today’s modern elections. From national to municipal contests, the influx of large donations places wealthy individuals—and interests—at odds with the average voter. Over the years, volumes of academic and legislative reforms have been proposed that encompass a wide range of electoral subject matter. From Citizens United to Federal Elections Commission (FEC) control mechanisms, solutions on how to change our campaign finance regulatory regime cover a large and diverse area of law and policy. However, the central theme throughout these reforms is maximizing transparency and curbing the undue influence …

Boumediene V. Bush: Flashpoint In The Ongoing Struggle To Determine The Rights Of Guantanamo Detainees, Michael J. Anderson

Maine Law Review

Following the harrowing events of September 11, 2001, and pursuant to the Authorization for Use of Military Force (AUMF) passed soon thereafter by Congress, the United States Armed Forces began capturing and detaining individuals at the Naval Air Base in Guantanamo Bay, Cuba. The choice of where to house these detainees was not random. Internal memoranda from the Justice Department reveal that the Naval Base was selected as a means of avoiding any legal entanglements that might ensue from such imprisonment. What resulted was what some commentators have called a “legal black hole” at Guantanamo, a place where any individual …