LSN: Constitutional Law (Topic)最新文献

{"title":"Preventing Congressional Violations of Taxpayer Privacy","authors":"G. Yin","doi":"10.2139/SSRN.2628193","DOIUrl":"https://doi.org/10.2139/SSRN.2628193","url":null,"abstract":"This article claims that the U.S. House Ways & Means Committee violated the law in 2014 when it voted (strictly along party lines) to release to the public the tax return information of 51 taxpayers. The committee acted under the belief that an obscure tax law provision authorized its action. But the provision required the committee to have a legitimate purpose for the disclosures and — incredibly — the committee failed to satisfy this almost trivial, common-sense restriction. Although the disclosures occurred in connection with the committee’s allegations of possible criminal misconduct by a high-ranking IRS official (Lois Lerner), most of the return information released was completely unrelated to the oversight objective and no disclosure was necessary to support the committee’s claims. In fact, there does not appear to have been any purpose whatsoever for the disclosures other than possibly providing a partisan political advantage to the committee majority. Because the Speech or Debate Clause of the Constitution insulated the committee from prosecution for the violation, the incident reveals a serious gap in taxpayer privacy protections. A future tax committee, for no legitimate reason, might release with impunity the return information of any taxpayer, including sensitive information belonging to a political enemy of those controlling the committee at the time.To prevent that outcome, this article proposes a new restriction on the access of the tax committees to tax return information. If the committees cannot obtain the information in the first instance, then they will be unable to disclose it for improper purposes. The proposal respects the legitimate need of the tax committees for the information by giving exclusive access to a Congressional staff intermediary who would be responsible for conveying necessary information to the tax committees while preventing improper disclosures. If, as claimed in this article, the intermediary’s actions would likely not be protected by the Speech or Debate Clause, then restrictions placed on the intermediary’s discretion in order to protect taxpayer privacy rights could be adequately enforced. Since today’s majority on a committee may obviously be tomorrow’s minority, it behooves every legislator to take action to prevent illegitimate disclosures in the future.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126248164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Policy Innovation Under Dynamic, Adaptative Federalism and Democratic Experimentalism Compared: Lessons for Federalism and Climate Change Adaptation Policy","authors":"Kirsten H. Engel","doi":"10.2139/ssrn.2710760","DOIUrl":"https://doi.org/10.2139/ssrn.2710760","url":null,"abstract":"Scholars of democratic experimentalism and new governance rightly criticize the static allocations of authority found in the American traditional federalism framework for its rigidity and potential to stifle innovation at the state and local levels. Nevertheless, this critique underappreciates the level of experimentation harbored by this framework, as witnessed in the dynamic interaction between the various levels of government. This dynamic interplay, which is very much on exhibit with respect to climate change regulation, is far from being devoid of new policy innovation. It also exhibits something that, in the long run, may be just as important – the adoption, at local and regional levels, of policy innovations developed at other, often the national or international levels. Hence not only do we see policy innovation arising out of traditional American federalism, but also “scale innovation.”This backdrop is important when exploring the best governance models for emerging environmental issues, the full scope of which are still poorly understood. Where does adaptation fit? Does it illustrate the market failures and potential gamesmanship that have justified traditional federalism models, complete with a strong policymaking role for the federal government, or is it best addressed as a problem ripe for the multilevel governance solutions offered by collaborative models? Any attempt to answer this question must match up the problems presented by adaption to the tools and processes offered by more traditional environmental federalism and that offered by collaborative governance regimes.I argue that, as understood so far, adaptation calls for a hybrid between traditional federalism models and ones suggested by democratic experimentalism and collaborative governance. Commentators uniformly predict that climate change will bring with it dynamic, complex and potentially abrupt, eco-systemic change at varying scales. Thus, for some, regulations in the service of adaptation should seek to reduce the vulnerability of ecosystems to abrupt and uncertain change and to reinforce the resiliency of such systems. This process would seem ideally suited to democratic experimentalism – a problem in need of a regulatory system that is constantly monitoring its effects and updating its requirements. But for others, adaptation will necessitate national (and possibly international) infrastructure and regulations, which, together with needed minimum standards applicable to even intrastate issues, will call for federal, state and local regulation similar to traditional federalism. I conclude that a model for a hybrid of the two – experimentalism and federalism – might be found in the cooperative federalism structure of EPA’s recent Clean Power Plan. Here states are held accountable, by the federal government, to regulatory goals of their own making. Thus the Plan incorporates flexibility of experimentalism but also the minimum standards and backstop of federal regulation","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129042252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Il 'Sospettoso' Cammino Europeo Del Bundesverfassungsgericht (The Distrustful European Path of the Federal Constitutional Court of Germany)","authors":"Pietro Faraguna","doi":"10.2139/SSRN.2703258","DOIUrl":"https://doi.org/10.2139/SSRN.2703258","url":null,"abstract":"Italian Abstract: Il contributo ripercorre dapprima le tappe del “sospettoso” cammino comunitario del BVerfG, a partire dalla molto nota saga Solange, fino alle ultimissime battute di un dialogo che si e fatto sempre piu complicato negli anni dell’eurocrisi e che ha trovato nella nuova (e non ancora conclusa) saga OMT/Gauweiler la sua ultima tappa. Quindi ci si sofferma sul significato di questa sfasatura tra le coordinate costituzionali, contraddistinte da un’ampia apertura al diritto europeo e internazionale, e il ruolo interpretato dal BVerfG nel cosi detto dialogo tra le Corti. Mettendo in evidenza le diverse linee di resistenza aperte e tutt’ora difese dal BVerfG, vengono analizzate alcune contraddizioni insite nel ruolo interpretato dal giudice costituzionale di Karlsruhe, istanza anti-maggioritaria per eccellenza, la cui legittimazione e strutturalmente antitetica rispetto a quella di un Parlamento che e sembrato assai meno preoccupato di tutelare le proprie prerogative di quanto non lo fossero i giudici costituzionali.English Abstract: The paper analyzes the “European” case-law of the German Federal Constitutional Tribunal. Starting from the so-called Solange jurisprudence, the German Tribunal has played a pivotal role in the European integration process. Lately, the Euro crisis has brought the Karlsruhe Tribunal again in the center of the stage of the so-called judicial dialogue, making the German Tribunal the commander-in-chief of a movement of national reluctance in front of the European measures adopted to tackle the crisis. More in particular, the paper examines the reasons that may justify the enhanced “sovereignistic” role played by the German Constitutional Tribunal, against the background of a national constitution characterized by a high level of openness toward European and international law.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122601284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Federalist Safeguards of Politics","authors":"A. Johnstone","doi":"10.2139/ssrn.2660484","DOIUrl":"https://doi.org/10.2139/ssrn.2660484","url":null,"abstract":"The Constitution's Guarantee Clause provides “The United States shall guarantee to every State in this Union a Republican Form of Government.” At a time of national political division and dysfunction the Union, as well as the Republican Form of Government itself, would be better served by letting states do more, and the United States less, to fulfill this guarantee. States do and should play as important a role as the federal government in articulating and implementing the law governing state political processes, or in formal terms, their republican forms of government. This article provides a reminder that the Guarantee Clause defines state governments by the indefinite article.The argument has four parts. Part I introduces the basic meaning of the guarantee and its evolution through the voting rights amendments. Beyond a consensus that holds our republicanism to require basic political equality, various perfectionist conceptions of a republican form of government diverge, reflecting the essential pluralism of republican governments in a federal system. Part II explains how the Supreme Court, Congress, and the Executive are now unable to articulate, let alone implement, any workable consensus on republicanism beyond a thin conception of those basic rights. Part III describes the states as the source of persistent and important distinctions in their republican forms of government, as both legal systems and political cultures that produce and are sustained by those systems. Part IV argues these distinctions in how states articulate and implement their own versions of republicanism are crucial to efforts toward reforming republicanism at the national level. Given the unsettled visions of republicanism at the national level, and the structural autonomy the states must retain at the core of our federal system, a plurality of views on republicanism among the states is not only durable but desirable.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"2 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126061564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Leveling the Playing Field? The Role of Public Campaign Funding in Elections","authors":"T. Klumpp, Hugo M Mialon, Michael A. Williams","doi":"10.1093/ALER/AHV006","DOIUrl":"https://doi.org/10.1093/ALER/AHV006","url":null,"abstract":"In a series of First Amendment cases, the U.S. Supreme Court established that government may regulate campaign finance, but not if regulation imposes costs on political speech and the purpose of regulation is to “level the political playing field.” The Court has applied this principle to limit the ways in which governments can provide public campaign funding to candidates in elections. A notable example is the Court's decision to strike down matching funds provisions of public funding programs (Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 2011). In this paper, we develop a contest-theoretic model of elections in which we analyze the effects of public campaign funding mechanisms, including a simple public option and a public option with matching funds, on program participation, political speech, and election outcomes. We show that a public option with matching funds is equivalent to a simple public option with a lump-sum transfer equal to the maximum level of funding under the matching program; that a public option does not always “level the playing field,” but may make it more uneven and can decrease as well as increase the quantity of political speech by all candidates, depending on the maximum public funding level; and that a public option tends to increase speech in cases where it levels the playing field. Several of the Supreme Court's arguments in Arizona Free Enterprise are discussed in light of our theoretical results.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116444219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Reforms of Citizen – Initiated Referendum: Causes of Different Outcomes in Slovenia and Croatia","authors":"Robert Podolnjak","doi":"10.2139/ssrn.2542931","DOIUrl":"https://doi.org/10.2139/ssrn.2542931","url":null,"abstract":"In the opinion of many Slovenian and Croatian scholars, the constitutional and legislative design of citizen-initiated referendums in their respective countries was in many ways flawed. Referendums initiated by citizens have caused, at least from the point of view of governments in these two countries, many unexpected constitutional, political and/or economic problems. Over the years, several unsuccessful constitutional reforms of the institute of referendum have been attempted both in Slovenia and Croatia. In 2013, Slovenia finally attained its ‘constitutional moment’ in which it was possible to reach an almost universal consensus in the National Assembly on constitutionally redesigning the legislative referendum. On the other hand, several attempts by the Croatian Parliament to amend the constitutional provision relating to citizens’ initiatives have come to nothing due to the interests of the major parties in the constitutional amendment process being different.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126208460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson III's Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance","authors":"N. Lund","doi":"10.5860/choice.50-1157","DOIUrl":"https://doi.org/10.5860/choice.50-1157","url":null,"abstract":"A distinguished federal appellate judge, J. Harvie Wilkinson III, has an exasperated message for constitutional theorists: A plague on all your houses! This short review demonstrates that Judge Wilkinson’s proposed alternative to all constitutional theories, which he calls “judicial restraint,” is actually a confused melange of judicial activism and judicial abdication. The review concludes by suggesting a different form of judicial restraint, and one that is consistent with the constitutional theory of originalism.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125731238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human Rights Law in the Republic of Ireland-2008","authors":"L. Thornton","doi":"10.5040/9781472565389.ch-009","DOIUrl":"https://doi.org/10.5040/9781472565389.ch-009","url":null,"abstract":"There continued to be significant engagement with human rights issues by the Irish legislature, government and judiciary in 2008. The strengthening of the human rights of trafficking victims, lesbian, gay and bisexual men and women are worthy points of note. This must be contrasted with the continuing controversies in immigration law, the failure of the Irish Government to legislate so as to protect the rights of transgendered persons and the severe financial cutbacks imposed on the Equality Authority and the Irish Human Rights Commission. The number of cases argued before the Irish Courts on issues relating to human rights continues to rise. The judiciary have engaged in human rights disputes in a large number of areas, ranging from criminal law, family law, child law, immigration law, property law and mental health law. The incorporation of the European Convention on Human Rights and Fundamental Freedoms into Irish law has had no small part to play in the increase in human rights adjudication before the courts. As can be seen from the range of cases examined below, judicial engagement with other international human rights law instruments and treaties remains low. Nevertheless, in the area of child law at any rate, the judiciary seems more prepared to at least make reference to international legal instruments in coming to decisions, even if domestic or European human rights law can solve the issue at hand. It remains to be seen whether in future years, judicial reference to unincorporated international human rights treaties will expand.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132884919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New Federal Indian Law","authors":"M. Fletcher","doi":"10.2139/SSRN.968728","DOIUrl":"https://doi.org/10.2139/SSRN.968728","url":null,"abstract":"Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases – and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear to arise more frequently in Indian law cases, decides those matters, and only then turns to the federal Indian law questions. Once the Court disposes of the important constitutional concern in its analysis, the Court’s federal Indian law analysis is secondary and often driven by pragmatism. This Article concludes by arguing that advocates for tribal interests must locate an important constitutional concern or a significant pragmatic consideration that will drive the Court’s analysis before they will turn around the win-loss ratio.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121520908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Substitute Arguments in Constitutional Law","authors":"Louis Michael Seidman","doi":"10.2139/ssrn.2631119","DOIUrl":"https://doi.org/10.2139/ssrn.2631119","url":null,"abstract":"In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime -– aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.","PeriodicalId":405138,"journal":{"name":"LSN: Constitutional Law (Topic)","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126348072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}