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Full-Text Articles in Political Science

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin Jan 2018

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011 ...


The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy Jan 2018

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty ...


The Core Of An Unqualified Case For Judicial Review: A Reply To Jeremy Waldron And Contemporary Critics, Alexander Kaufman, Michael B. Runnels Dec 2016

The Core Of An Unqualified Case For Judicial Review: A Reply To Jeremy Waldron And Contemporary Critics, Alexander Kaufman, Michael B. Runnels

Brooklyn Law Review

No abstract provided.


Two Dogmas Of Originalism, Ian Bartrum Jan 2015

Two Dogmas Of Originalism, Ian Bartrum

Washington University Jurisprudence Review

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the ...


Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek Jan 2015

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the ...


Why Law Matters For Our Obligations, Guyora Binder Jan 2015

Why Law Matters For Our Obligations, Guyora Binder

Journal Articles

Political philosophers have long debated the problem of political and legal obligation: how the existence of a political community and its laws can affect our obligations. This paper applies Alon Harel’s argument that law has intrinsic value to this venerable problem. It interprets Harel’s argument as a Kantian claim that law enables us to treat our fellows with the respect they deserve, by requiring us not only to treat them decently, but to recognize decent treatment as their right.


Three Arguments About War, Robert Tsai Dec 2014

Three Arguments About War, Robert Tsai

Robert L Tsai

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual ...


The Supreme Court Forecasting Project: Legal And Political Science Approaches To Predicting Supreme Court Decisionmaking, Theodore W. Ruger, Pauline T. Kim, Andrew D. Martin, Kevin M. Quinn Jul 2014

The Supreme Court Forecasting Project: Legal And Political Science Approaches To Predicting Supreme Court Decisionmaking, Theodore W. Ruger, Pauline T. Kim, Andrew D. Martin, Kevin M. Quinn

Kevin M. Quinn

No abstract provided.


Commentary: Noam Chomsky And Judicial Review, James G. Wilson May 2014

Commentary: Noam Chomsky And Judicial Review, James G. Wilson

James G. Wilson

Although Chomsky has never discussed judicial review in any detail, he recently made several interesting observations. He believes America's governmental structure remains acceptable, even desirable, even though all three federal branches have not just failed to protect us from private power's excesses but instead have devoted far too much of their energy and power to enhancing private power. The constitutional text creates a unique relationship between the Supreme Court and private power. Because the Court is staffed by unelected Justices who need not pander for money to be reelected, it is more independent of the rich and powerful ...


Public Reason As Higher Law, Gordon D. Ballingrud Jan 2014

Public Reason As Higher Law, Gordon D. Ballingrud

Gordon D Ballingrud

This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law ...


Legitimation, Mark C. Modak-Truran Jan 2014

Legitimation, Mark C. Modak-Truran

Mark C Modak-Truran

This article identifies three different conceptions of legitimation - pre-modern, modern, and post-secular - that compete both within and across national boundaries for the coveted prize of informing the social imaginary regarding how the government and the law should be legitimated in constitutional democracies. Pre-modern conceptions of legitimation consider governments and rulers legitimate if they are ordained by God or if the political system is ordered in accordance with the normative cosmic order. Contemporary proponents of the pre-modern conception range from those in the United States who maintain that the government has been legitimated by the “Judeo-Christian tradition” to those in predominantly ...


Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee Jan 2014

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

Faculty Scholarship at Penn Law

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to ...


Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz Aug 2013

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine ...


A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz Jun 2013

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily ...


Kadi V. Commission: A Case Study Of The Development Of A Rights-Based Jurisprudence For The European Court Of Justice, Alisa Shekhtman Apr 2013

Kadi V. Commission: A Case Study Of The Development Of A Rights-Based Jurisprudence For The European Court Of Justice, Alisa Shekhtman

Claremont-UC Undergraduate Research Conference on the European Union

No abstract provided.


Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz Jan 2013

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed ...


The Impact Of Codification On The Judicial Development Of Copyright, Christopher S. Yoo Jan 2013

The Impact Of Codification On The Judicial Development Of Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal ...


After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman Dec 2012

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no law on ...


Direct (Anti-)Democracy, Maxwell L. Stearns Mar 2012

Direct (Anti-)Democracy, Maxwell L. Stearns

Maxwell L. Stearns

Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken. Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article ...


The Discourse Of Judging, John Brigham Jan 2012

The Discourse Of Judging, John Brigham

John Brigham

No abstract provided.


The Relation Of Theories Of Jurisprudence To International Politics And Law, Anthony D'Amato Jan 2011

The Relation Of Theories Of Jurisprudence To International Politics And Law, Anthony D'Amato

Faculty Working Papers

In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach the question of the operative difference a study of these theories might make in world politics.


Collective Choice, Justin Schwartz Jan 2011

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility ...


Collective Choice, Justin Schwartz Jan 2011

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility ...


American Legal Realism: Sound And Fury Signifying Nothing?, Wouter H. De Been Jan 2011

American Legal Realism: Sound And Fury Signifying Nothing?, Wouter H. De Been

Wouter H. de Been

No abstract provided.


Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal Jan 2011

Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal

Daniel Hornal

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of ...


Race, Colorblindness And Equality In Recent Supreme Court Jurisprudence: Assessing An Evolving Standard, Steven V. Mazie Jan 2011

Race, Colorblindness And Equality In Recent Supreme Court Jurisprudence: Assessing An Evolving Standard, Steven V. Mazie

Steven V. Mazie

This essay weighs the merits of the ascendant interpretation of the Equal Protection Clause of the 14th Amendment: a colorblind reading of equality that received a boost in the Court’s Ricci v. DeStefano decision of 2009. In Ricci, the Court concluded that the City of New Haven had acted illegally when it scrapped a promotion exam for firefighters on which whites had vastly outperformed black and Hispanic candidates. The article opens by surveying the major twists and turns of the Supreme Court’s view of racial classifications since the 14th Amendment was adopted in 1868. It updates that history ...


Constituent Authority, Richard Kay Dec 2010

Constituent Authority, Richard Kay

Richard Kay

The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory have long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison ...


Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer Dec 2009

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views ...


Equality, Race And Gifted Education: An Egalitarian Critique Of Admission To New York City's Specialized High Schools, Steven V. Mazie Apr 2009

Equality, Race And Gifted Education: An Egalitarian Critique Of Admission To New York City's Specialized High Schools, Steven V. Mazie

Steven V. Mazie

Educational programs for gifted students face both philosophical and practical challenges from egalitarians. Some object that gifted schools inherently undermine a commitment to equality in education, while others observe that schools for talented students cater to privileged youth and effectively discriminate against disadvantaged minorities. This article taps into recent theorizing on equality to explore an illuminating case study: admissions policies at New York City’s so-called ‘specialized’ high schools. After dismissing less nuanced proposals on both ends of the spectrum, I draw upon Elizabeth Anderson’s theory of ‘democratic egalitarianism’ to argue that, while schools devoted to talented students could ...


Ontology, Epistemology, Axiology: Bases For A Comprehensive Theory Of Law, Eric A. Engle Jan 2009

Ontology, Epistemology, Axiology: Bases For A Comprehensive Theory Of Law, Eric A. Engle

Eric A. Engle

This article presents a comprehensive theory of law founded on correct ontological, epistemological and axiological bases and proposes that monism materialism and holism will have greater explanatory and predictive power than dualist, atomist and realist International Relations (IR) theory have had. The theory, though focussed on IR theory, is applicable to domestic law as well. Western thought has long been predicated on either an ontological materialism (matter determines mind) or an ontological idealism (eidetic realism: mind determines matter). Normally, the materialist view is also monist (reality is fundamentally unitary), whereas the idealist view is generally presented as dualist (reality is ...