Law and Politics Commons^™

The Higher-Cost Problem: How The Case Act Addresses The History Of Inequity In The American Copyright Regime, Michael Newell

University of Miami Law Review

The legislative history of copyright law in the United States and its judicial interpretation resulted in a complex web of statutes and doctrine theoretically meant to further the constitutional goal of “promot[ing] the Progress of Science and the useful Arts.” But because of its complexity, enforcing rights against infringers in federal court became prohibitively expensive for most. The American copyright regime simultaneously allowed the music industry to unfairly profit from the creativity of the under-resourced—particularly, musicians of color.

This Note discusses the disparate impact of the American copyright regime. Then, the Note discusses the Copyright Alternatives in the Small-Claims Enforcement …

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Letting Offenders Choose Their Punishment?, Gilles Grolleau, Murat C. Mungan, Naoufel Mzoughi

Faculty Scholarship

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the …

A Law Professors’ Symposium Asks: Should We Control The U.S. Supreme Court?, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

There’S A Secular Need For The High Holy Days. This Is Why, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Climate Change And The Threat To U.S. Jails And Prisons, Laurie L. Levenson

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Wishing To Be Part Of That Court: How The Supreme Court's Decision In Bp P.L.C. V. Mayor Of Baltimore Lets Energy Companies Wander Free And Drown The Shore Up Above, Natalie Poirier

Villanova Environmental Law Journal (1991 - )

No abstract provided.

U.S. Covert Actions In The Indonesian Genocide: The International Criminal Court, Mia C. Rabkin

Binghamton University Undergraduate Journal

After the Korean War in 1950, the Cold War expanded to Asia transitioning from purely economic aid in Europe from the Marshall Plan, to direct military intervention then to covert military operations under the Eisenhower Administration in Indonesia. The focus of this research is on the United States military intervention through covert military operations from 1950-66 and details the evolution of foreign policy in Indonesia from the economic aid to supplying names of PKI insurgents to be slaughtered. With the general research questions of How did CIA interference through covert military operations in Indonesia highlight a shift in CIA intervention …

Content Moderation As Surveillance, Hannah Bloch-Wehba

Faculty Scholarship

Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of …

The Administrative Agon: A Democratic Theory For A Conflictual Regulatory State, Daniel E. Walters

Faculty Scholarship

A perennial challenge for the administrative state is to answer the “democracy question”: how can the bureaucracy be squared with the idea of self-government of, by, and for a sovereign people with few direct means of holding agencies accountable? Scholars have long argued that this challenge can be met by bringing sophisticated thinking about democracy to bear on the operation of the administrative state. These scholars have invoked various theories of democracy—in particular, pluralist, civic republican, deliberative, and minimalist theories—to explain how allowing agencies to make policy decisions is consistent with core ideas about what democracy is.

There is a …

The Trouble With Court-Packing, Neil S. Siegel

Faculty Scholarship

Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. This Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, this …

Trump Isn’T Going To Jail. And That’S Good News For Democrats, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Nation’S Debt Limit Serves No Purpose. It Should Be Eliminated, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Drawing The Line Between Talent And Desire 09-23-2022, Michelle Choate

Life of the Law School (1993- )

No abstract provided.

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.

Only You Can Prevent Amendment Abuse, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Donald Trump And America's New Class War, Glenn Harlan Reynolds

Book Chapters

No abstract provided.

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

Operation Lone Star: The Spectacle Of Immigration Federalism, Danielle Puretz

Dissertations, Theses, and Capstone Projects

Texas Governor Greg Abbott launched Operation Lone Star in March 2021 to respond to the “crisis” at the United States/Mexico border. While in the US immigration is usually thought of as a federal responsibility, different states have worked to expand their capacity to welcome or exclude immigrants. Operation Lone Star is an example of how one state is working to restrict immigration to the US and build notoriety for its republican governor. Drawing on press releases, executive orders, news articles, opinion pieces, and other sources I highlight the performative politics within this initiative. Operation Lone Star is an example of …

How Biden Could Keep Filling The Federal Circuit Court Vacancies, Carl Tobias

Washington and Lee Law Review Online

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump …