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Articles 1 - 18 of 18

Full-Text Articles in Political Science

In Dedication To Chief Justice Christine M. Durham, Jess M. Krannich Jul 2012

In Dedication To Chief Justice Christine M. Durham, Jess M. Krannich

Jess M. Krannich

No abstract provided.


How The British Gun Control Program Precipitated The American Revolution, David B. Kopel Jan 2012

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if ...


Bad News For John Marshall, David B. Kopel, Gary Lawson Dec 2011

Bad News For John Marshall, David B. Kopel, Gary Lawson

David B Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual ...


Is Reform Inevitable In Iran? An Evolutionary Analysis, Atin Basu Choudhary, Laura Razzolini, Dixon Josh Jan 2011

Is Reform Inevitable In Iran? An Evolutionary Analysis, Atin Basu Choudhary, Laura Razzolini, Dixon Josh

Atin Basu Choudhary

A persistent, if somewhat violent, reformist movement in Iran has many observers believing that reform is inevitable in Iran. We suggest that such optimism is misplaced. We use an evolutionary game theory approach to a standard assurance game to show that even when the gains to reform are obvious, the reformists may not succeed. We show further that as long as hardliners hold the levers of government they can stymie the success of reformists. Thus, from a policy perspective we believe that a gradual evolutionary path to reformist success is plausible but it depends crucially on the initial proportion of ...


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 ...


Don’T’ Know Much About History: Constitutional Text, Practice, And Presidential Power, David A. Schultz Dec 2010

Don’T’ Know Much About History: Constitutional Text, Practice, And Presidential Power, David A. Schultz

David A Schultz

Assertions of presidential supremacy and power in affairs often invoke history, including events during the administration of George Washington, to defend their assertions. This article raises some questions regarding what we can learn from history for constitutional argument. It concedes generally that historical facts can support or buttress constitution argument, but more specifically it contends that acts undertaken by George Washington are problematic assertions for presidential power, especially those that assert “supremacist” or broad if not exclusive claims for presidential foreign policy authority. To do that, this article first describes how history is employed as constitutional argument for presidential power ...


Bush V. Boumediene: The Court Is Back, Jay Dratler Jun 2008

Bush V. Boumediene: The Court Is Back, Jay Dratler

Akron Law Publications

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.

In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its ...


Bush V. Boumediene: The Court Is Back, Jay Dratler Jun 2008

Bush V. Boumediene: The Court Is Back, Jay Dratler

Jay Dratler

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its ...


James Wilson And The Drafting Of The Constitution, William Ewald Jun 2008

James Wilson And The Drafting Of The Constitution, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


Less Than Fundamental: The Myth Of Voter Fraudand The Coming Of The Second Great Disenfranchisement, David A. Schultz Jan 2008

Less Than Fundamental: The Myth Of Voter Fraudand The Coming Of The Second Great Disenfranchisement, David A. Schultz

David A Schultz

This article examines the issue of voter fraud and efforts to regulate it through new photo identification requirements. The overall thesis is that voting fraud is a pretext for a broader agenda to disenfranchise Americans and rig elections. However, the more specific focus of this article is both to examine the evidence of fraud and the litigation around voter IDs thus far, and what supporters of voting rights can learn from both as they move forward and challenge these laws in the future. The Article will argue that the evidence being offered for the photo IDs does not justify the ...


"One Person, One Vote, And The Constitutionality Of The Winner-Take-All Allocation Of Electoral Votes", David A. Schultz Apr 2006

"One Person, One Vote, And The Constitutionality Of The Winner-Take-All Allocation Of Electoral Votes", David A. Schultz

David A Schultz

The winner-take-all method of allocating electoral votes in presidential races is the norm among states, yet nowhere in the Constitution is this practice mandated. This article contends that the winner-take-all allocation of electors unconstitutionally magnifies the battleground states' influence on the final Electoral College tally and that these inequities cannot be reconciled with the principle of one-person, one-vote that the US Supreme Court articulated in the landmark Reynolds v. Sims. In 1966 the Supreme Court declined to hear a case contesting the constitutionality of the winner-take-all system based on the one person, one vote, principle. It is time for the ...


Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer Jan 2005

Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


The Opacity Of Transparency, Mark Fenster Dec 2004

The Opacity Of Transparency, Mark Fenster

Mark Fenster

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes ...


Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer Sep 2004

Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Tench Coxe And The Right To Keep And Bear Arms, 1787-1823, David B. Kopel Jan 1999

Tench Coxe And The Right To Keep And Bear Arms, 1787-1823, David B. Kopel

David B Kopel

Tench Coxe, a member of the second rank of this nation's Founders and a leading proponent of the Constitution and the Bill of Rights, wrote prolifically about the right to keep and bear arms. In this Article, the authors trace Coxe's story, from his early writings in support of the Constitution, through his years of public service, to his political writings in opposition to the presidential campaigns of John Adams and John Quincy Adams. The authors note that Coxe described the Second Amendment as guaranteeing an individual right, and believed that an individual right to bear arms was ...


Relativism, Reflective Equilibrium, And Justice, Justin Schwartz Jan 1997

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into ...


The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo Jan 1997

The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo

Faculty Scholarship at Penn Law

Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress’s authority to employ devices such as special counsels and independent agencies to restrict the President’s control over the administration of the law. The initial debate focused on whether the Constitution rejected the “executive by committee” employed by the Articles of the Confederation in favor of a “unitary executive,” in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such ...


The System Worked: Our Schizophrenic Stance On Welfare, Robert Tsai Dec 1995

The System Worked: Our Schizophrenic Stance On Welfare, Robert Tsai

Robert L Tsai

This is a review of Steven M. Teles's book, Whose Welfare? AFDC and Elite Politics (University Press of Kansas, 1996), which argues that welfare policy reflects a dynamic of elite dissensus, in which public policy fails to reflect popular opinion. I make two central points in the review: first, there are reasons to believe that welfare policy does, in fact, reflect a deeply conflicted American electorate; and second, such a conflict may reveal a healthy deliberative order struggling to reconcile changing priorities with enduring values.