Law and Politics Commons^™

The Right To Occupy—Occupy Wall Street And The First Amendment, Sarah Kunstler

Fordham Urban Law Journal

No abstract provided.

Occupy Wall Street And International Human Rights, Martha F. Davis

Fordham Urban Law Journal

No abstract provided.

Occupy Our Occupations: Why “We Are The 99%” Resonates With Working People And What We Can Do To Fix The American Workplace, Sarah Leberstein, Anastasia Christman

Fordham Urban Law Journal

No abstract provided.

The Hidden Under Caste Of America: An Examination Of The Effects Of Terry V. Ohio, Florida V. Bostick, & Whren V. United States And Colorblindness On African Americans, Austin Schoeck

Political Science: Student Scholarship & Creative Works

No abstract provided.

King V. Burwell: Where Were The Tax Professors?, Andy S. Grewal

Pepperdine Law Review

King v. Burwell drew unusually wide attention for a tax case. Members of the public, the mainstream media, health care professionals, Washington think tanks, and constitutional, administrative, and health law professors, to name a few groups, all debated the merits of the challengers’ arguments. Everyone, it seems, had something to say about the case — except tax professors. This contribution to Pepperdine Law Review’s Tax Law Symposium explores three potential reasons for the tax professoriate’s reticence. It concludes that none of those reasons withstand scrutiny, and going forward, tax professors should play a more active role in cases like this.

How The Supreme Court Can Change Politics As Usual, Jeffrey Bellin

Popular Media

No abstract provided.

Originalism And The Executive, Neil Kinkopf

Faculty Publications By Year

No abstract provided.

The Immunity Of The Attorney General To Law Society Discipline, Andrew Martin

Articles, Book Chapters, & Popular Press

English Abstract: The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion …

A New Frontier In Campaign Finance Regulation, John M. Greabe

Law Faculty Scholarship

In recent years, the United States Supreme Court has taken what many regard as a doctrinaire approach to campaign finance regulation. It has seized on the indisputable proposition that limits on campaign expenditures and contributions implicate important First Amendment values and, pressing the proposition to logical extremes, invalidated a number of federal and state laws that had imposed such limits.

This newspaper editorial discusses recently proposed legislation in the state of New Hampshire that would collect fees on expenditures made by individual political candidates, PACs, and Super PACS. The collected fees would be used to help the state justice department …

Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi

Osgoode Hall Law Journal

Three high-profile government losses in the Supreme Court of Canada in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between Stephen Harper’s Conservative government and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning Aboriginal rights and the elimination of the long-gun …

The Perfect Process Is The Enemy Of The Good Tax: Tax's Exceptional Regulatory Process, Stephanie Mcmahon

Faculty Articles and Other Publications

Many courts and academics critique existing tax exceptionalism or the ability of the federal income tax to be created, applied, or interpreted differently from other laws. Critics have successfully complained that the Treasury Department, and the IRS as a bureau of the Department, issues guidance implementing the Internal Revenue Code using different processes from those required by the Administrative Procedure Act (APA). At the same time, courts are increasing the level of deference given to this guidance to conform to that given other agencies. This article responds to these critics by urging they re-focus their attention on the objectives of …

The Threat Of Independent Political Spending To Democratic Life—And A Plan To Stop It, Bruce Ledewitz

Ledewitz Papers

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

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

All Faculty Scholarship

We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that courts …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Ledewitz Papers

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

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Law Of Democracy At A Crossroads: Reflecting On Fifty Years Of Voting Rights And The Judicial Regulation Of The Political Thicket, Franita Tolson

Florida State University Law Review

No abstract provided.

Does A House Of Congress Have Standing Over Appropriations?: The House Of Representatives Challenges The Affordable Care Act, Bradford Mank

Faculty Articles and Other Publications

In U.S. House of Representatives v. Sylvia Matthews Burwell, the District Court for D.C. in 2015 held that the House of Representatives has Article III standing to challenge certain provisions of the Affordable Care Act as violations of the Constitution’s Appropriations Clause. The Supreme Court’s jurisprudence on legislative standing is complicated. The Court has generally avoided the contentious question of whether Congress has standing to challenge certain presidential actions because of the difficult separation-of-powers concerns in such cases. In Raines v. Byrd, the Court held that individual members of Congress generally do not have Article III standing by simply holding …

Drilling For Common Ground: How Public Opinion Tracks Experts In The Debate Over Federal Regulation Of Shale Oil & Gas Extraction, Elizabeth Ann Glass Geltman

Publications and Research

Public interest in environmental and health impacts from shale oil and gas extraction (what the public calls “fracking”) is growing. Industry claims the public outcry against the new technology is not grounded in science. In February 2013, Resources for the Future (“RFF”) published a list of high priority “risk pathways” that experts from NGOs, academia, government, and industry all agreed were real concerns about fracking. This article used the risk matrix to evaluate whether public comments in dockets of federal agencies that proposed regulation concerning hydraulic fracturing tracked expert concern. The article found that the public tracked many of the …

Incarceration Incentives In The Decarceration Era, Avlana Eisenberg

Scholarly Publications

After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders …

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …