Law and Politics Commons^™

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

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, 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 …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

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 …

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 …

How Cheap Speech Underserves And Overheats Democracy, Gregory P. Magarian

Scholarship@WashULaw

A quarter century ago, Eugene Volokh’s article Cheap Speech and What It Will Do foretold a new regime of technologically driven “cheap speech” that would fundamentally change how people communicated with one another and navigated the information ecosystem. Professor Volokh’s vision was mainly descriptive, and his normative assessment of cheap speech sounded some circumspect notes of warning. Fundamentally, though, he painted an optimistic picture. In particular, he made the important claim that emerging technologies would democratize and diversify our society by giving many more speakers access to the tools of mass communication and audiences access to many more ideas.

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 …

Foreword, Fernando R. Laguarda

Scholarly Articles in Law Reviews & Journals

It was an honor to be asked to write this introduction to the American UniversityLegislation & PolicyBriefannual publication. AULPB was launched in 2008 with help from then-Professor Jamie Raskin as the Legislation and Policy Roundtable, becoming a fully-fledged publication in 2011. Today, the AULPB plays a vital role in the intellectual life of the Washington College of Law, serving as the central forum for scholarship on topics at the intersection of law and public policy. In the past three years, AULPB has also organized symposia focusing on cutting edge topics elevated by bipartisan dialogue. I was privileged to work closely …

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

Publications

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

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. …

Introduction: What Matters For Black Workers After 2020?, Michael Z. Green

Faculty Scholarship

This paper operates as the Introduction to a Symposium that resulted from a Call for Papers discussing the topic of "What Matters for Black Workers after 2020?" to be published in the 25th volume of the Employee Rights and Employment Policy Journal for 2021. This paper briefly discusses the papers in that Symposium publication authored by Jamillah Bowman Williams, Michael Duff, and Henry Chambers that address this topic. I thank Noah Zatz, Marty Malin, Michael Oswalt, Marcia McCormick, and Tristan Kirvan for their dedicated efforts, feedback, and encouragement in completing this Symposium issue for the journal on this very important …

Let's Get Serious - The Clear Case For Compensating The Student Athlete - By The Numbers - A University Of Michigan Athletic Program Case Study, Neal Newman

Faculty Scholarship

Should college athletes be compensated for their play and if so, how? The first question has been a debate for some time now. But the second question—the “how”—not so much. This writing addresses both questions in depth. With the Ed O’Bannon case that was decided back in August of 2014 and the palaver the Northwestern football team raised in their efforts to unionize, it is acknowledged that the discussions on this issue may have reached its crescendo years ago. That is until now. On September 27, 2019, Gavin Newsom, the Governor of California, signed into law Senate Bill 206. Senate …

Inside The Master's Gates: Resources And Tools To Dismantle Racism And Sexism In Higher Education, Susan Ayres

Faculty Scholarship

The spring of 2020 saw waves of protest as police killed people of color. After George Floyd’s death, protests erupted in over 140 cities. The systemic racism exhibited by these killings has been uncontrollable, hopeless, and endless. Our country is facing a national crisis. In response to the police killings, businesses, schools, and communities held diversity workshops across the nation, and businesses and organizations posted antiracism statements. Legislators and City Councils introduced bills and orders to defund police and to limit qualified immunity. As schools prepared for the fall semester, teachers considered ways to incorporate antiracism materials into the curriculum. …

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

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 …

How Law Made Neoliberalism, Jedediah S. Purdy, Amy Kapczynski, David Singh Grewal

Faculty Scholarship

We live in an era of intersecting crises-some new, some old but newly visible. At the time of writing, the COVID-19 pandemic has already caused nearly 500,000 deaths in the United States alone, with many more deaths on the horizon in the coming months. Since its arrival in the United States, the virus has intersected with and magnified long-neglected problems-radical disparities in access to healthcare and the fulfillment of basic needs that disproportionately impact communities of color and working-class Americans, alongside a crisis of care for the young, elderly, and sick that stretches families and communities to the breaking point

The Fight Ahead, Bernard E. Harcourt

Faculty Scholarship

The sitting president of the United States, squarely defeated in the 2020 election and denied a second term, staged a counterrevolution on January 6, 2021-the day Congress was scheduled to confirm the results of the Electoral College. It was an unprecedented sight. A mob stormed the Capitol, overtook the House and Senate chambers, and ransacked the Speaker's office. Instigated by the president, the insurrection was enabled by the leaders of the Republican Party who, for months, refused to recogniz.e the election results.

This counterrevolution was long in the making. Its eruption fully exposed the deep rift in this country.

The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt

Faculty Scholarship

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but …