Law and Politics Commons^™

The Separation Of Politics And Science, Joanna K. Sax

Faculty Scholarship

This article proposes that scientific inquiry regarding questions of fact should have an autonomous zone that is protected from politics. Although many scholars promote the idea that science is politicized, little empirical data exists to support this conclusion. This article contains an empirical study that demonstrates that the public received inaccurate information in the debate over a highly politicized and controversial area of scientific inquiry, embryonic stem cell research.

This article utilizes the data from the empirical study and public choice theory to explain that there are process defects; this economic model can help explain, but cannot be used to …

Power Games, Aneil Kovvali

Michigan Law Review First Impressions

According to the traditional account, Congress has the "necessary constitutional means and personal motives to resist encroachments" by the president. As commentators have recognized, however, the traditional account does not match reality. Individuals in Washington, D.C., are more interested in fighting for their political party than for their branch of government, and the essentially reactive legislative branch lacks the capacity to respond to a rapidly changing policy environment. But the traditional account suffers from a more basic flaw. The president can decide whether or not to cooperate with Congress on a situation-by-situation basis. By contrast, Congress's tools for disciplining the …

Constitutional Conflict And Congressional Oversight, Andrew Mccanse Wright

Marquette Law Review

In matters of oversight, Congress and the President have fundamentally incompatible views of their institutional roles within the constitutional structure. This Article offers an explanation of divergent branch behavior and legal doctrine. Congress, much like a party to litigation, views itself as having fixed substantive rights to obtain desired information from the Executive and private parties. In contrast, the Executive views itself like a party to a business transaction, in which congressional oversight requests are the opening salvo in an iterative negotiation process to resolve competing interests between co-equal branches. In general, legislators want to litigate and executive officers want …

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. …

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Faculty Scholarly Works

No abstract provided.

In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro

Student Articles and Papers

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the …

Corporate Law Constraints On Political Spending, James Kwak

Faculty Articles and Papers

Corporations currently can participate in electoral politics in the United States through various means: affiliated PACs, super PACs, 501(c)(6) organizations like the Chamber of Commerce, 501(c)(4) social welfare organizations, and traditional 501(c)(3) charitable organizations. Corporate law, as generally interpreted by the courts, places few constraints on the ability of corporate insiders to engage in politics as they choose. I argue that existing statutes and case law could be interpreted to impose greater constraints on corporate political activity. Political contributions should be reviewed as potential violations of the duty of loyalty whenever they could provide personal benefits to board members and …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

Articles, Book Chapters, & Popular Press

In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault

Faculty Scholarship

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, …

Good Will Hunting: How The Supreme Court's Hunter Doctrine Can Still Shield Minorities From Political-Process Discrimination, Kerrel Murray

Faculty Scholarship

When the Sixth Circuit struck down Michigan’s anti-affirmative-action Proposal 2 in 2012, its reasoning may have left some observers hunting for their Fourteenth Amendment treatises. Rather than applying conventional equal protection doctrine, the court rested its decision on an obscure branch of equal protection jurisprudence known as the Hunter doctrine, which originated over forty years ago. The doctrine, only used twice by the Supreme Court to invalidate a law since its creation, purports to protect the political-process rights of minorities by letting courts invalidate laws that work nonneutrally to make it more difficult for them to “achieve legislation that is …

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …

Advancing The Empirical Research On Lobbying, John M. De Figueiredo, Brian Kelleher Richter

Faculty Scholarship

This essay identifies the empirical facts about lobbying which are generally agreed upon in the literature. It then discusses challenges to empirical research in lobbying and provides examples of empirical methods that can be employed to overcome these challenges—with an emphasis on statistical measurement, identification, and casual inference. The essay then discusses the advantages, disadvantages, and effective use of the main types of data available for research in lobbying. It closes by discussing a number of open questions for researchers in the field and avenues for future work to advance the empirical research in lobbying.

Neoliberalism And The Good Daddies And Bad Daddies Of Academic Freedom, Stewart Chang

Scholarly Works

In this micro symposium article, Professor Stewart Chang joins his colleagues in addressing the questions posed by Stanley Fish, in his article, "Versions of Academic Freedom: From Professionalism to Revolution." Professor Chang specifically seeks to answer "What is the relationship between academic freedom and democracy?" as applied to Singapore.

Citizenship At Work: How The Supreme Court Politically Marginalized Public Employees, Ruben J. Garcia

Scholarly Works

Collective bargaining by public sector employees has been the subject of recent heated debates in the state legislatures of Wisconsin, Michigan, Ohio, and Indiana. The right of public sector employees to freedom of association, collective bargaining, and the right to participate in politics are among the “citizenship rights” of public employees. In many states, however, the citizenship rights of public employees are under threat both in state legislatures and in the courts. Paradoxically, the ability of public sector employees to change legislation has been hampered over the years by Supreme Court decisions, making it more difficult to organize politically by …

Standing At A Constitutional Divide: Redefining State And Federal Requirements For Initiatives After Hollingsworth V. Perry, Scott L. Kafker, David A. Russcol

Washington and Lee Law Review

In Hollingsworth v. Perry, the Supreme Court denied standing to proponents of the California initiative prohibiting same-sex marriage, who wished to appeal a federal district court judge’s decision declaring the initiative unconstitutional. As suggested by the dissent, Hollingsworth has severe consequences for the twenty-four states in which the people can bypass elected officials and legislate directly through the initiative. The Supreme Court has established a clear constitutional divide between state and federal standing requirements for initiatives. Whereas states provide generous standing to proponents so officials do not exclusively control the defense of the people’s initiative process, the Supreme Court …

Abortion Distortions, Caroline Mala Corbin

Articles

No abstract provided.

Using Force Against The "Weapons Of The Weak": Examining A Chemical-Biological Weapons Usage Criterion For Unilateral Humanitarian Intervention Under The Responsibility To Protect, Andrew M. Bell

Cardozo Journal of International and Comparative Law

The civil war in Syria has demonstrated the international community's inability to act to protect civilians caught in mass atrocities during cases of U.N. Security Council deadlock, with permanent member vetoes presenting a significant legal obstacle to international humanitarian intervention.

The Responsibility to Protect (R2P) construct, created in response to the NATO intervention in Kosovo, was originally designed to overcome such Security Council paralysis by transforming the debate from the "right" of states to intervene to the "responsibility" of the entire international community to protect civilians as well as open the door to legitimate unilateral humanitarian intervention in cases of …

From Villa Grimaldi To Guantánamo Bay: Remedying Human Rights Abuses In Chile And The United States, Nadia Shamsi

Cardozo Journal of International and Comparative Law

The article examines the effectiveness of transitional justice mechanisms in addressing human rights abuses, using Chile's experience under Augusto Pinochet as a model. It critiques the U.S. for failing to adopt similar approaches to accountability, particularly in addressing abuses at Guantanamo Bay and other detention centers. The analysis highlights the importance of combining truth commissions, criminal prosecutions, and reparations to achieve justice and promote democratic transition. It argues that the U.S. must align its domestic practices with the international human rights standards it promotes.

Taking The Bloody Linen Out Of The Closet: Menstrual Hygiene As A Priority For Achieving Gender Equality, Inga T. Winkler, Virginia Roaf

Cardozo Journal of Equal Rights & Social Justice

Regular menstruation signals a woman's health and fertility. menstruation is surrounded by shame, secrecy, embarrassment, fear, humiliation, silence, taboo, and stigma. Linked to this taboo, many cultural and religious norms-often grounded in patriarchal assumptions-seek to prevent contact with menstruating women and girls in order to avoid 'contamination' or 'becoming impure'. To some extent, this perception of menstruation is a paradox, given that motherhood is glorified. However, menstruation is not perceived as feminine', and it does not conform to the stereotypical role and behavior of women. Such stereotypes require women to be beautiful and beautified, deodorized and fresh, not bloody and …

Pragmatic Liberalism: The Outlook Of The Dead, Justin Deystone

Publications

At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that "law in the books" had drifted too far from the "law in action." This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and …