California Law Review最新文献_第8页

Rethinking Political Power in Judicial Review 司法审查中的政治权力再思考

IF 2.4 2区社会学

California Law Review Pub Date : 2017-11-06 DOI: 10.15779/Z38SX6494W

A. Tang

{"title":"Rethinking Political Power in Judicial Review","authors":"A. Tang","doi":"10.15779/Z38SX6494W","DOIUrl":"https://doi.org/10.15779/Z38SX6494W","url":null,"abstract":"For decades, scholars have argued that the proper judicial response when democratically enacted laws burden politically powerless minority groups is more aggressive judicial review. This political process approach, however, has fallen on deaf ears at the Supreme Court since the 1970s. Justice Scalia was thus accurate (if not politic) when he derided political process theory as an “old saw” of constitutional law. \u0000 \u0000There is a different role that political power may yet play. The key to seeing it is to focus on the other side of the political power spectrum. Courts can be attentive to situations when the groups burdened by a law are politically powerful, not just when they are powerless. Political power’s presence, I want to suggest, can be a good reason for judges to defer to democratically enacted laws, even if one thinks its absence is a bad reason to strike laws down. \u0000 \u0000This Article advances a positive and normative case for an approach to judicial review that is attuned to political power. As a positive matter, it turns out the Supreme Court has employed such an approach in a number of decisions, including in opinions joined by seven of the nine current Justices. And as a normative matter, treating political power as a reason for judicial deference may help unlock the democratic and institutional benefits of leaving contested constitutional questions to the political branches without sacrificing the role of courts in safeguarding individual rights. The Article concludes by applying these insights to five contemporary disputes in constitutional law: the rise of First Amendment Lochnerism, gun control and the Second Amendment, same sex marriage, due process limits on punitive damage awards, and the closely-regulated industries exception to the Fourth Amendment warrant requirement.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44525804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Redefining the Legality of Undocumented Work 重新定义无证件工作的合法性

IF 2.4 2区社会学

California Law Review Pub Date : 2017-09-21 DOI: 10.15779/Z38TH8BN20

Jennifer J. Lee

{"title":"Redefining the Legality of Undocumented Work","authors":"Jennifer J. Lee","doi":"10.15779/Z38TH8BN20","DOIUrl":"https://doi.org/10.15779/Z38TH8BN20","url":null,"abstract":"Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft, dangerous working conditions, or human trafficking. \u0000 \u0000Given the current climate, this article explores how states and localities can resist the federal prohibition by legalizing undocumented work. We live in times of resistance, with “sanctuary cities” that refuse to cooperate with federal immigration enforcement. Seizing on this moment, state and local resistance can offer more immediate accountability for addressing the plight of undocumented workers while disrupting the ways in which the federal immigration framework defines the illegality of undocumented work. To start, this article reviews how the incongruence between the lived experiences of undocumented workers and the federal immigration framework creates an underclass of workers. Next, it develops a typology of state and local resistance measures that recognize, protect, or promote undocumented work and considers whether these measures can succeed given concerns about federalism and governmental retaliation. \u0000 \u0000This article concludes by discussing why state and local resistance is worthwhile. Beyond the palpable benefits of addressing exploitation, state and local resistance can help undocumented workers overcome exclusion by increasing their sense of belonging. Community members too benefit from the strengthening of workers’ rights and the contributions to the local economy. At the same time, such resistance changes social norms and provides a powerful critique of the federal prohibition on undocumented work. Ultimately, this article is the first to examine how state and local resistance focused on undocumented work can lend itself to building social movements that promote immigrant inclusion by redefining the legality of undocumented work.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47982256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

'The Mellow Pot-Smoker': White Individualism in Marijuana Legalization Campaigns “成熟的瘾君子”:大麻合法化运动中的白人个人主义

IF 2.4 2区社会学

California Law Review Pub Date : 2017-08-29 DOI: 10.15779/Z38PZ51K8D

David Schlussel

引用次数: 9

Presidential Obstruction of Justice 总统妨碍司法公正

IF 2.4 2区社会学

California Law Review Pub Date : 2017-07-18 DOI: 10.2139/SSRN.3004876

Daniel Hemel, E. Posner

引用次数: 7

LGBT Identity and Crime LGBT身份与犯罪

IF 2.4 2区社会学

California Law Review Pub Date : 2017-07-17 DOI: 10.15779/Z389W08Z24

J. Woods

{"title":"LGBT Identity and Crime","authors":"J. Woods","doi":"10.15779/Z389W08Z24","DOIUrl":"https://doi.org/10.15779/Z389W08Z24","url":null,"abstract":"Recent studies report that LGBT adults and youth disproportionately face hardships that scholars have long-viewed as risk factors for criminal offending and victimization. Some of these factors include higher rates of poverty, overrepresentation in the youth homeless population, and overrepresentation in the foster care system. In spite of these risk factors, there is a lack of study and available data on LGBT people who come into contact with the criminal justice system as offenders or as victims.Through an original intellectual history of the treatment of LGBT identity and crime, this Article provides insight into how this problem in LGBT criminal justice developed and examines directions to move beyond it. The history shows that until the mid-1970s, the criminalization of homosexuality left little room to think of LGBT people in the criminal justice system other than as deviant sexual offenders. The trend to decriminalize sodomy in the mid-1970s opened a narrow space for scholars, advocates, and policymakers to use anti-discrimination principles to redefine LGBT people in the criminal justice system as innocent and non-deviant hate crime victims, as opposed to deviant sexual offenders. Although this paradigm shift has contributed to some important gains for LGBT people, this Article argues that it cannot be celebrated as an unequivocal triumph. This shift has left us with flat understandings of LGBT offenders as sexual offenders and flat understandings of LGBT victims as hate crime victims. These one-dimensional narratives miss many criminal justice problems that especially fall on LGBT people who bear the brunt of inequality in the criminal justice system — including LGBT people of color, transgender people, undocumented LGBT people, and low-income and homeless LGBT people. The Article concludes by showing how ideas and methods in criminology offer promise to enhance accounts of LGBT offending and LGBT victimization, and in turn, inform law, policy, and the design of criminal justice institutions to better respond to the needs and experiences of LGBT offenders and LGBT victims.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42096226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 15

American Colonialism and Constitutional Redemption 美国殖民主义与宪法救赎

IF 2.4 2区社会学

California Law Review Pub Date : 2017-06-13 DOI: 10.15779/Z38WH2DF05

S. Davis

{"title":"American Colonialism and Constitutional Redemption","authors":"S. Davis","doi":"10.15779/Z38WH2DF05","DOIUrl":"https://doi.org/10.15779/Z38WH2DF05","url":null,"abstract":"Americans are debating what it would take to redeem the Constitution’s promise of a “more Perfect Union” in a time of deep and stark disagreements about the nation’s future. Despite the partisan rancor, most Americans share a faith in the Constitution’s redemptive potential. Constitutional faith is the civic religion that shapes our constitutional law, theory, and politics and binds Americans as one nation, indivisible. \u0000This Essay is about something our faith forgets: The promise of a “more Perfect Union” of “We the People” is not redemptive for colonized peoples who did not consent to the Constitution but are subject to American power. It makes three contributions to constitutional law and theory by focusing upon the United States’ colonial relationships with American Indians and Alaska Natives. First, this Essay makes the case that American colonialism poses a fundamental challenge to our constitutional faith. It traces the convergence of American constitutionalism and American colonialism in the concept of government power as a public trust, which is the foundation of federal plenary power over American Indians and Alaska Natives. Second, this Essay argues that the trust conception of constitutional law cannot solve the problem of redeeming American colonialism. Instead, the constitutional trust has reinforced the very power relations and ideology that Indian Nations challenge when they claim a right to national self-determination. Third, this Essay offers a viable alternative for redressing the wrongs of American colonialism by revisiting the problem of redemption from a relational perspective, one that does not focus upon Indian Nations’ dependence upon the United States. In comparing trust with contract to develop this relational perspective, this Essay contributes to the emerging literature that reimagines constitutional law by reference to existing rules and norms from the common law.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":null,"pages":null},"PeriodicalIF":2.4,"publicationDate":"2017-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45449277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5

Federalism All the Way Up: State Standing and 'The New Process Federalism' 联邦制一路走来：国家地位与“联邦制新进程”

IF 2.4 2区社会学

California Law Review Pub Date : 2017-06-01 DOI: 10.15779/Z38N29P65H

Jessica Bulman-Pozen

引用次数: 0

Eleanor Swift: A Mentor of Courage and Grace 埃莉诺·斯威夫特:勇气与优雅的导师

IF 2.4 2区社会学

California Law Review Pub Date : 2017-05-04 DOI: 10.15779/Z38HP16

Julia M. Fromholz

引用次数: 0

Embracing the Machines: Rationalist War and New Weapons Technologies 拥抱机器:理性主义战争和新武器技术