Law and Politics Commons^™

Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale

Faculty Scholarship

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. …

Sexual Politics And Social Change, Darren L. Hutchinson

Faculty Articles

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court's ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court's ruling in Lawrence v. Texas. This altered landscape created the ''political opportunity" for the Lawrence ruling and made the opinion relatively "safe. "

Currently, …

Mechanism Choice, Jonathan B. Wiener, Barak D. Richman

Faculty Scholarship

This chapter reviews the literature on the selection of regulatory policy instruments, from both normative and positive perspectives. It first reviews the mechanism design literature to identify normative objectives in selecting among the menu or toolbox of policy instruments. The chapter then discusses the public choice and positive political theory literatures and the variety of models developed to attempt to predict the actual selection of alternative policy instruments. It begins with simpler early models focusing on interest group politics and proceeds to more complicated models that incorporate both supply and demand for policy, the role of policy entrepreneurs, behavioral and …

Pangloss Responds, Daniel A. Crane

Articles

I am afraid that William Shieber and I are speaking past each other. I agree wholeheartedly with his assertion that anyone who believes that political appointees do not exert a considerable influence over the antitrust agencies is naïve. However, Technocracy and Antitrust does not advance the Panglossian view that the antitrust agencies are apolitical, if by that we mean that robotic machines devoid of human perspective or ideological commitment churn out scientifically predetermined antitrust results.

Bias Arbitrage, Amitai Aviram

Washington and Lee Law Review

The production of law-including the choice of a law's subject matter, the timing of its enactment and the manner in which it is publicized and perceived by the public-is significantly driven by an extra-legal market in which politicians and private parties compete over the opportunity to engage in bias arbitrage. Bias arbitrage is the extraction of private benefits through actions that identify and mitigate discrepancies between actual risks and the public's perception of the same risks. Politicians arbitrage these discrepancies by enacting laws that address the misperceived risk and contain a "placebo effect"--a counter-bias that attempts to offset the pre-existing …

Enlightenment, Donald J. Herzog

Articles

It's a curious broadside, a work of austere graphics and polite prose far removed from the mischievous engravings and bawdy ballads usually appearing on such sheets. Drawn from an address that 345 printers had signed and 138 had presented to the queen, the original text was committed to parchment "and accompanied by a Copy surperbly printed on white Satin, edged with white Silk Fringe, backed with purple Satin, and mounted in an Ivory Roller with appropriate Devices." Even in the published version, the arch is full of intricately detailed work. The printers took pride in their craftmanship: "This Specimen of …

Chief Justice Hughes' Letter On Court-Packing, Richard D. Friedman

Articles

After one of the great landslides in American presidential history, Franklin D. Roosevelt took the oath of office for the second time on January 20, 1937. As he had four years before, Chief Justice Charles Evans Hughes, like Roosevelt a former governor of New York, administered the oath. Torrents of rain drenched the inauguration, and Hughes’ damp whiskers waved in the biting wind. When the skullcapped Chief Justice reached the promise to defend the Constitution, he “spoke slowly and with special emphasis.” The President responded in kind, though he felt like saying, as he later told his aide Sam Rosenman: …

Democratic Credentials, Donald J. Herzog

Articles

We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …

The Supreme Court In Politics., Terrance Sandalow

Reviews

Despite all that has been written about the bitter struggle initiated by President Reagan's nomination of Robert Bork to a seat on the Supreme Court, its most remarkable feature, that it was waged over a judicial appointment, has drawn relatively little comment. Two hundred years after the Philadelphia Convention, Hamilton's "least dangerous" branch - least dangerous because it would have "no influence over either the sword or the purse, no direction either of the strength or the wealth of the society, and can take no active resolution whatever"'-had come to occupy so important a place in the nation's political life …

Political Pressure And Judging In Constitutional Cases, Robert F. Nagel

Publications

No abstract provided.

Public Support For Pro-Choice Abortion Policies In The Nation And States: Changes And Stability After The Roe And Doe Decisions, Eric M. Uslaner, Ronald E. Weber

Michigan Law Review

"The Supreme Court," according to the legendary Mr. Dooley, "follows the election returns." In 1973, the Court's two landmark decisions, Roe v. Wade and Doe v. Bolton, struck down statutes in the forty-six states where abortions were not permitted under any circumstances or were allowed only to save the life of the woman during the first three months of pregnancy. There had been a considerable increase in the level of support for the pro-choice position among the public in the few years preceding Roe and Doe. But did the decisions themselves lead to even more public support for …

A Reflection Upon Amnesty / The Case For Alternative Service: A Reply To Professor Sax, Douglas A. Kahn

Articles

Professor Sax advocates that unconditional amnesty should be granted to Vietnam draft evaders and deserters, and he contends that the condition of alternative service imposed by President Ford, while superficially attractive to some, is unsupported by an acceptable rationale. While I harbor misgivings concerning the grant of any type of amnesty for Vietnam evaders and deserters, I have concluded that amnesty should be given provided that it is conditioned on the performance of some service such as that required by President Ford's program. Obviously, this places me squarely at issue with Professor Sax, and I will attempt to detail the …

Review Of Concerning Dissent And Civil Disobedience, By A. Fortas, Terrance Sandalow

Reviews

Noah Chomsky has written of Justice Fortas' essay that it "is not serious enough for extended discussion." It would be a mistake to dismiss the essay so lightly. The prestige of Justice Fortas' office almost inevitably will gain for the essay an audience it would not otherwise have had, among whom will be those who will confuse the office with the argument. For some this confusion will insulate the argument from criticism. For others it will tarnish the office.

Labor And Capital Before The Law, Thomas M. Cooley

Articles

The chief concern of every political society is the establishment of rights and of adequate securities for their protection. In America, it has been agreed that this shall be done by the people themselves; they shall make their own laws, and choose their own agents to administer them. But the obvious difficulty of doing this directly has been recognized, and the people, after formulating the charter of government, incorporating in it such principles as they deem fundamental, content themselves with delegating all powers of ordinary legislation to representatives. Notwithstanding this delegation, much direct legislation of a very effective and important …