The Journal of law & politics最新文献

{"title":"Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment","authors":"Daniel J. T. Schuker","doi":"10.2139/ssrn.2518554","DOIUrl":"https://doi.org/10.2139/ssrn.2518554","url":null,"abstract":"This Article offers a new approach to understanding, classifying, and assessing cases of presidential disability. In constitutional terms, “presidential disability” refers to any condition that renders the President of the United States “unable to discharge the powers and duties” of the office. Remarkably, the existing legal infrastructure under the Twenty-Fifth Amendment provides no guidance for determining when a President has become constitutionally disabled. Nor does it explain when the President (under Section 3) should initiate the succession process, and when the Vice President and other senior officials (under Section 4) should take the lead instead. During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86343023","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 Myth of State Autonomy: Federalism, Political Parties, and the National Colonization of State Politics","authors":"James A. Gardner","doi":"10.2139/SSRN.2191150","DOIUrl":"https://doi.org/10.2139/SSRN.2191150","url":null,"abstract":"American federalism contemplates that states will retain a significant degree of autonomy so that state power can serve as a meaningful counterweight to national power. It is often said that states exercise this function through extraconstitutional processes centered on the political party system. That is, states influence the content of national law and protect themselves from undesirable exercises of national power by using the mechanisms of internal party processes. If this process is to work properly, however, states must retain considerable political autonomy, for the possibility of state objection to exercises of national power is merely theoretical if state political processes are not sufficiently independent of their national counterparts to enable the state to adopt and assert ends or interests different from those asserted by the national government. The evidence, however, suggests strongly that the growth of national political parties during and since the early nineteenth century created a two-way street. Parties not only offered states a way to influence national politics, but also created a reverse pathway by which national politics could influence, and in many cases overawe, any independent state-level politics. As a result, the same extraconstitutional pathways that provided states a means to protect themselves from national domination simultaneously eroded the political autonomy necessary for states to maintain the kind of independent wills contemplated by the federal arrangement. This does not mean that states lack entirely the capacity to stand up to the federal government, but it does mean that their ability to do so is limited, not necessarily for lack of power but for lack of autonomous control over their political agendas and positions. This in turn suggests a much chastened conception of what it might mean for a subnational government to have the ability to “check” national power.","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"1 1","pages":"1-68"},"PeriodicalIF":0.0,"publicationDate":"2012-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90828853","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":"Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age","authors":"Richard L. Hasen","doi":"10.2139/SSRN.1948313","DOIUrl":"https://doi.org/10.2139/SSRN.1948313","url":null,"abstract":"Everywhere you look, campaign finance disclosure laws are under attack. Disclosure has been opposed by the National Organization for Marriage, Senate and House Republicans (including Senator McConnell, who used to call for no limits and full disclosure), Republican members of the Federal Election Commission, and the U.S. Chamber of Commerce. But attacks on disclosure have come not only from the right. Members of the academy, including Bill McGeveran, Richard Briffault, Lloyd Mayer, and Bruce Cain. have criticized disclosure laws. In this short Essay, I offer a qualified defense of government-mandated disclosure, one which recognizes the concerns of these prominent academics but also sees much of the anti-disclosure rhetoric of the Chamber and others as overblown and unsupported - offered disingenuously with the intention to create a fully deregulated campaign finance system in which large amounts of secret money flow in an attempt to curry favor with politicians but avoid public scrutiny. To the contrary, disclosure laws remain one of the few remaining constitutional levers to further the public interest through campaign finance law.Even in the Internet age, in which the costs of obtaining campaign finance data about small-scale contributions by individual donors often have fallen to near zero, there is virtually no record of harassment of donors outside the context of the most hot button social issue of gay marriage - and even there, much of the evidence is weak. In the face of evidence of a real threat of serious harassment, courts should freely grant exemptions from campaign finance laws. Even absent proof of harassment, Congress and state legislatures should modify their disclosure laws to protect the informational privacy of those individuals who use modest means to express symbolic support for candidates or ballot measures. But major players in the electoral process generally should not be able to shield their identities under a pretextual appeal to the prevention of “harassment” because of the important government interests in preventing corruption and providing valuable information to voters which are furthered by mandated disclosure. It is no surprise that the Internet has been primarily responsible for the loss of informational privacy in the campaign finance disclosure context. Perhaps more surprisingly, the Internet is at least indirectly responsible for strengthening the two primary government interests supporting mandatory disclosure. The rise of the Internet was a prime force in the unraveling of the older campaign finance regime, and the subsequent emergence of new campaign finance organizations such as “Super PACs” which raise the danger of the corruption of elected officials dramatically. Disclosure laws may not be the best tool to police the potential for corruption from these new or supercharged campaign finance vehicles. Nonetheless, disclosure laws are much better than nothing in ferreting out when an elected official might ","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"18 1","pages":"557"},"PeriodicalIF":0.0,"publicationDate":"2011-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91341055","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":"Examining the American Bar Association's Ratings of Nominees to the U.S. Courts of Appeals for Political Bias, 1989-2000","authors":"James Lindgren","doi":"10.2139/SSRN.290186","DOIUrl":"https://doi.org/10.2139/SSRN.290186","url":null,"abstract":"In this study, Professor Lindgren examined data on the 108 confirmed nominees to the U.S. Circuit Courts of Appeal from the administrations of George H.W. Bush and William J. Clinton. He shows - for the first time - evidence of differential treatment of nominees by the American Bar Association's rating committee. Yet this is not a simple story of apparent ABA bias toward Clinton nominees. Among confirmed nominees with the most important credential - prior judicial experience - Bush nominees fare roughly as well and sometimes even better than Clinton nominees. The problem arises for those without judicial experience. Here the apparent preference for Clinton appointees is strikingly large. Without controlling for any credentials, Clinton confirmed nominees have 9.1 times as high odds of getting a unanimous well qualified rating as do Bush confirmed nominees. Controlling for credentials, Clinton nominees have 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees. For those without prior judicial experience, just being nominated by Clinton instead of Bush is a stronger positive variable than any other credential or than all other credentials put together. The differences in how the ABA treats Bush and Clinton nominees reaches even to the committee's internal decision making. The ABA committee split its vote 33% of the time while evaluating Bush appointees, but only 17% of the time when evaluating Clinton appointees. This difference was concentrated among those who lacked prior judicial experience, where 50% of Bush appointees had split ratings, compared to only 10% of Clinton appointees with split ratings.","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"1 1","pages":"1-39"},"PeriodicalIF":0.0,"publicationDate":"2001-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79894743","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":"Should human cloning be criminalized?","authors":"I H Carmen","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"13 4","pages":"745-58"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26571179","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}