Anti-Modalities,
2021
Columbia Law School
Anti-Modalities, David E. Pozen, Adam Samaha
Faculty Scholarship
Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …
Review Of The Judicial Tug Of War: How Lawyers, Politicians, And Ideological Incentives Shape The American Judiciary,
2021
Washington University in St. Louis School of Law
Review Of The Judicial Tug Of War: How Lawyers, Politicians, And Ideological Incentives Shape The American Judiciary, Christina L. Boyd, Matthew E. Baker
Scholarship@WashULaw
In their new book, Bonica and Sen promise a JUDICIAL TUG OF WAR, and they deliver. THE JUDICIAL TUG OF WAR: HOW LAWYERS, POLITICIANS, AND IDEOLOGICAL INCENTIVES SHAPE THE AMERICAN JUDICIARY investigates the battle between the legal profession and political elites “in which the judiciary not only is the prize to be won but is also caught in the middle” (p. 19). The result of this high stakes conflict is a judiciary tinged by politics. In modern times, the legal bar pulls the judiciary to the left, while political elites, on average, yank back toward the right. As Bonica and …
State-Adjacent Professionals: How Chinese Lawyers Participate In Political Life,
2021
Washington University in St. Louis School of Law
State-Adjacent Professionals: How Chinese Lawyers Participate In Political Life, Lawrence J. Liu, Rachel E. Stern
Scholarship@WashULaw
This article complicates the conventional wisdom that Chinese lawyers are either politically liberal activists or apolitical hired guns by training our attention on the group of lawyers who choose to stand adjacent to the state and participate in governance. Through an examination of how and why winners of the state-sanctioned Outstanding Lawyer Award participate in politics, we illustrate how state-adjacent lawyers provide the state with information and persuade others to behave in ways the state considers appropriate. Although proximity to power affords some social and professional benefits, award winners are also motivated by a commitment to improving Chinese society. By …
What Accounts For The Variation Of Immigration Policies In Western Democracies Since 9/11?,
2021
The University of Akron
What Accounts For The Variation Of Immigration Policies In Western Democracies Since 9/11?, Hayley Mcelroy
Williams Honors College, Honors Research Projects
From the aftermath of the 9/11 terrorist attacks to now, there has been a dramatic change of immigration policies among Western Democracies. This comparative paper will measure the change of refugee acceptance rates and will discover the reasons for these variations. Immigration has become a major issue in the United States as well as in other Western democracies. Even though most of these democracies are located in similar geographic areas and have similar cultures, they all have different approaches when it comes to accepting immigrants and refugees. Furthermore, this paper will analyze the policies of the United States, the United …
The Recent Changes Introduced To The Method Of Removal Of Judges Of The Supreme Court Of Bangladesh & The Consequent Triumph Of An All-Powerful Executive Over The Judiciary: Judicial Independence In Peril,
2021
Thomas More Law School
The Recent Changes Introduced To The Method Of Removal Of Judges Of The Supreme Court Of Bangladesh & The Consequent Triumph Of An All-Powerful Executive Over The Judiciary: Judicial Independence In Peril, M. Ehteshamul Bari
Cardozo International & Comparative Law Review
Nothing contributes more to the firmness and independence of the judiciary as permanency in office, as it enables judges to decide cases, regardless of whether their decisions please the executive or the legislature. The Constitution of Bangladesh, 1972, originally empowered the Parliament to remove judges of the Supreme Court only on the grounds of proved misbehavior or incapacity. However, the Constitution (Fourth Amendment) Act, 1975, which replaced parliamentary democracy with a presidential form of government, empowered the President to remove the judges of the Supreme Court in accordance with his own will. But two years later in April 1977, the …
Balancing Independence And Accountability: Proposals To Reform Special Counsel Investigations,
2021
Fordham University School of Law
Balancing Independence And Accountability: Proposals To Reform Special Counsel Investigations, Lawrence Keating, Steven Still, Brittany Thomas, Samuel Wechsler
Faculty Scholarship
Investigations of the president and other high-ranking officials must be free from political interference yet cannot devolve into “runaway” inquiries. This report recommends reforms to the rules for every stage of special counsel investigations. Among the proposals is a requirement that federal judges oversee the attorney general’s appointment and removal of special counsels. Additionally, a special counsel should be mandatory when the president is suspected of a crime and reports on investigations should go directly to Congress.
Selecting Representative And Qualified Candidates For President: Proposals To Reform Presidential Primaries,
2021
Fordham University School of Law
Selecting Representative And Qualified Candidates For President: Proposals To Reform Presidential Primaries, Daisy De Wolff, Ben Kremnitzer, Samara Perlman, Gabriella Weick
Faculty Scholarship
The presidential primary processes used by the two major parties misses opportunities to engage voters and incorporate their input in selecting nominees. This report advances several reforms to make the primaries more inclusive, including reordering the primary calendar to give voters in more states a meaningful voice, eliminating caucuses, and opening primaries to independent voters. Additionally, the political parties should make primary debates more informative and limit party leaders’ opportunities to have disproportionate input in selecting presidential candidates
Improving Communication With Public Officials On Social Media: Proposals For Protecting Social Media Users’ First Amendment Rights,
2021
Fordham University School of Law
Improving Communication With Public Officials On Social Media: Proposals For Protecting Social Media Users’ First Amendment Rights, Kendra Kumor, Evelyn Li, Nicole Rubin
Faculty Scholarship
Government officials undermine a key platform for communication with the public when they block users or delete their comments on social media. Those actions also often run afoul of the First Amendment. To address a problem that exists at all levels of government, this report recommends legislation that bans public officials using social media for official purposes from blocking users or deleting their comments, except when comments are unprotected by the First Amendment.
An Absolute Power, Or A Power Absolutely In Need Of Reform? Proposals To Reform The Presidential Pardon Power,
2021
Fordham University School of Law
An Absolute Power, Or A Power Absolutely In Need Of Reform? Proposals To Reform The Presidential Pardon Power, Milana Bretgoltz, Albert Ford, Alicia Serrani
Faculty Scholarship
The presidential pardon power can serve valuable purposes, but the lack of checks on the power invites abuses. This report calls for laws and executive orders to curtail misuses of the pardon power. Congress should pass laws banning the president from pardoning himself or herself and issuing pardons for conduct that has not yet occurred. Executive orders should set detailed procedures for considering pardons and require reports to Congress if the president pardons a family member or close associate.
Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy,
2021
Fordham University School of Law
Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue
Faculty Scholarship
The stability of the Supreme Court’s size and procedures is a critical source of legitimacy, but reforms might protect the Court’s independence from politics. Perceptions among members of the public that justices are political actors harms the rule of law. This report discusses reforms to ensure that each president receives the same number of appointments to the Supreme Court. The report also considers how to guarantee each nominee a Senate hearing and reforms to the retirement stage of justices’ tenures.
Hong Kong And China: Building Bridges Between Two Systems In One Country,
2021
Benjamin N. Cardozo School of Law
Hong Kong And China: Building Bridges Between Two Systems In One Country, Harold Kang
Cardozo Journal of Conflict Resolution
In 1984, Britain and China negotiated an agreement that resulted in Hong Kong's reunification with China over one hundred years after it was surrendered to Britain following the Opium War. The Sino-British Joint Declaration stipulated that although China would exercise territorial sovereignty over Hong Kong, Hong Kong would still maintain a high degree of autonomy until the year 2047. This meant that Hong Kong would have independent executive, legislative, and judicial powers while maintaining its capitalist system and way of life. However, these promisesdespite codification in the Basic Law, which is a quasi-Constitution-do not escape the inherent contradiction in "one …
Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023),
2021
University of Maine School of Law
Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg
Faculty Publications
Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …
Imagining The Progressive Prosecutor,
2021
University of Colorado Law School
Imagining The Progressive Prosecutor, Benjamin Levin
Publications
As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …
Government Falsehoods, Democratic Harm, And The Constitution,
2021
University of Colorado Law School
Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton
Publications
No abstract provided.
The Political (Mis)Representation Of Immigrants In Voting,
2021
University of Colorado Law School
The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp
Publications
Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.
Environmental Law, Disrupted By Covid-19,
2021
CUNY School of Law
Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado Peréz, Robin Kundis Craig, Lissa Griffin, Sarah Krakoff, Keith Hirokawa, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan, David Takacs
Publications
For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year.
The Political (Mis)Representation Of Immigrants In The Census,
2021
University of Colorado Law School
The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen
Publications
Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …
Agonistic Privacy & Equitable Democracy,
2021
University of Colorado Law School
Agonistic Privacy & Equitable Democracy, Scott Skinner-Thompson
Publications
This Essay argues that legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting the subordinating, antidemocratic impacts of surveillance and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics. By increasing heterogeneity within the public sphere, privacy can also help decrease polarization by breaking down echo chambers and …
Put More Women In Charge And Other Leadership Lessons From Covid-19,
2021
University of Colorado Law School
Put More Women In Charge And Other Leadership Lessons From Covid-19, Peter H. Huang
Publications
COVID-19 teaches us lessons about leadership, the most important of which is to put more women in charge. This Article provides an interdisciplinary analysis of these lessons, which come at the very high price of many forever disrupted and lost human lives. COVID-19 is a global tragedy. COVID-19 can also be a cruel, relentless and unforgiving teacher of valuable lessons about leadership. During COVID-19, leaders had to quickly mobilize many resources and convince many people to change their established behaviors and familiar routines. Leaders had to rely on effective and persuasive communication to achieve buy-in and voluntary compliance by a …
Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality,
2021
Columbia Law School
Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias
Faculty Scholarship
This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …
