Law and Politics Commons^™

A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen

Dickinson Law Review (2017-Present)

President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

Political Dysfunction And Constitutional Structure, David Orentlicher

Scholarly Works

In this essay, Professor Orentlicher reviews three books that analyze different features of the U.S. political system:

1. Michelle Belco & Brandon Rottinghaus, The Dual Executive: Unilateral Orders in a Separated and Shared Power System (Stanford Univ. Press 2017).

2. Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (Harvard Univ. Press 2017).

3. Martin H. Redish, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford Univ. Press 2017).

Politically Engaged Unionism: The Culinary Workers Union In Las Vegas, Ruben J. Garcia

Scholarly Works

This chapter introduces the reader to "politically engaged unionism" as demonstrated by the bargaining successes of The Culinary Workers Union Local 226 in Las Vegas, Nevada. Professor Ruben J. Garcia provides a brief background of the union and its member demographics, arguing it can serve as a model for unions across the country.

The Left's Law-And-Order Agenda, Aya Gruber

Publications

No abstract provided.

The Uses And Abuses Of The Government's Tools Of Information Control, Helen Norton

Publications

No abstract provided.

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

It Takes A Village: An Analysis Of Multilateralism And The Legal Mechanisms Designed To Prevent Violence Against Women, Madison Ivey

Scripps Senior Theses

Treaties and international organizations work together to create a global environment that protects the rights of a person and actively promotes the well-being of society. However, they do not necessarily guarantee the rights of everyone. Since women are not explicitly named in human rights documents, they are often not granted equal human rights. Therefore, it takes more than just international legal instruments to guarantee women's rights as human rights. A combination of civil society (NGOs), International organizations (IOs), and domestic government creates a perfect coalition to beat the barriers that must be overcome to fully protect women from violence.

Suing Russia: How Americans Can Fight Back Against Russian Intervention In American Politics, William J. Aceves

Faculty Scholarship

The evidence of Russian intervention in American politics is overwhelming. In the midst of the 2016 US presidential campaign, a growing number of inflammatory social media posts addressing various political topics emerged on Facebook, Instagram, and Twitter. These posts supported the candidacy of Donald Trump, condemned the influx of refugees and migrants, and promoted racial divisions in the United States. Through clicks, likes, shares, and retweets, these messages reached millions of Americans. But, these messages did not originate in the United States; they were drafted and disseminated through inauthentic social media accounts created and controlled by the Internet Research Agency, …

Presidential Responses To Protest: Lessons Jefferson Davis Never Learned, Ashlee Paxton-Turner

Faculty Scholarship

No abstract provided.

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

Unbowed, Unbroken, And Unsung: The Unrecognized Contributions Of African American Women In Social Movement, Politics, And The Maintenance Of Democracy, Patricia A. Broussard

Journal Publications

Black women have made huge contributions to American society in movements, politics, and maintenance of the democracy. Black women have been relegated to footnotes, turned in memes, and largely ignored in politics and other areas of power. Notwithstanding the disrespect, disregard, and failures of the larger society to acknowledge that black own have made significant contributions, not only in the in entertainment industry, but in numerous other ways that have shaped out cultural and political landscape, black women's contributions to the larger society have been huge and impactful; yet there are so many blank spaces where their stories should reside. …

The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis

University of Michigan Journal of Law Reform

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …

Understanding State Agency Independence, Miriam Seifter

Michigan Law Review

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened …

Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of …

Facebook-Cambridge Analytica Data Harvesting: What You Need To Know, Ikhlaq Ur Rehman

Library Philosophy and Practice (e-journal)

In 2018, it became public knowledge that millions of Facebook users’ data had been harvested without their consent. At the heart of the issue was Cambridge Analytica (CA) which in partnership with Cambridge researcher, Aleksandr Kogan harvested data from millions of Facebook profiles. Kogan had developed an application called “thisisyourdigitallife” which featured a personality quiz and CA paid for people to take it. The app recorded results of each quiz, collected data from quiz taker’s Facebook account such as personal information and Facebook activity (e.g., what content was “liked”) as well as their Facebook friends which led to data harvesting …

Political Parties And Constitutional Fidelity

Marquette Law Review

In the aftermath of the 2016 presidential election, fewer themes have received more attention from scholars and public commentators than political polarization. However, given the recent focus on tension and conflict in contemporary American society, the present also seems an especially appropriate moment to investigate those fundamental structures that have successfully worked in the opposite direction to bind and stabilize the American polity. The goal of this paper is precisely this task, and to emphasize the centrality of one particular structure that has played such a stabilizing function: the political parties. Parties are often invoked in discussions of political polarization. …

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Texas A&M Law Review

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

Reefer Madness: The Constitutional Consequence Of The Federal Government's Inconsistent Marijuana Policy, Zachary Ford

Texas A&M Law Review

In the past twenty years, the United States has witnessed over half of its states create marijuana laws that expressly contradict the federal government’s complete ban of the drug. Nine states have completely legalized marijuana for recreational use in the past five years alone. Meanwhile, much of the country remains staunchly opposed to legalization in any form. This difference between state and federal law has the largest negative impact on noncitizens, namely lawful permanent residents whom reside in states that follow the federal government’s complete ban. Congress’s Immigration and Nationality Act broadly defines “conviction,” so even minor drug convictions under …

Billion Dollar Orphans: Tension Between The Legal Intent And Social Purpose Of The Orphan Drug Act, John Sheridan

Texas A&M Law Review

This Comment examines the extent to which Congress empowered the FDA to address the increase in petitions and the general accessibility of orphan drug remedies. Specifically, this Comment seeks to understand why the FDA’s interpretation of the purpose of the ODA seems to conflict with the statutory intent as interpreted by federal courts. This Comment considers a statute’s ultimate goal or social purpose to be the purpose of the statute, whereas the express mechanisms by which Congress seeks to bring about these goals is best understood as the statute’s intent. To understand the FDA and judiciary’s differing interpretations of the …