dunnettreader + scotus   31

Michael Kang - Gerrymandering and the Constitutional Norm Against Government Partisanship (2017) :: SSRN
Win election law prize - Michigan Law Review, Vol. 116, No. 3, Dec. 2017, Forthcoming- Emory Legal Studies Research Paper
71 Pages
Posted: 17 Aug 2017; Last revised: 28 Oct 2017
Michael S. Kang, Emory University School of Law
The Article challenges the basic premise in the law of partisan gerrymandering that government partisan purpose is constitutional at all. The central problem, Justice Scalia once explained in Vieth v. Jubelirer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking. The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a purpose-focused approach that identifies partisanship as an illegitimate basis for lawmaking and requires the government to justify its redistricting with reference to legitimate state interests beyond partisanship, irrespective of extreme partisan effects. The importance of consolidating and reifying the norm against government partisanship, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime.
Keywords: gerrymandering, redistricting, Whitford v. Gill, partisanship, parties, Bandemer
constitutional_law  political_participation  Evernote  gerrymandering  public_interest  SSRN  accountability  partisanship  liberalism-public_reason  democracy  article  downloaded  US_constitution  corruption  legitimacy  SCOTUS  elections 
november 2017 by dunnettreader
Sino Knuuttila - Medieval Theories of Future Contingents [updated 2015] | (Stanford Encyclopedia of Philosophy)
Related Entries
Auriol [Aureol, Aureoli], Peter | Boethius, Anicius Manlius Severinus | fatalism | free will: divine foreknowledge and | future contingents | Gersonides | Gregory of Rimini | Holkot [Holcot], Robert | modality: medieval theories of | prophecy
contingency  Boethius  modal_logic  logic  free_will  Cicero  divine_​omniscience  Aristotle  fate  Abelard  Aquinas  necessity  SCOTUS  Providence  prophecy  medieval_philosophy  future_contingents  God-attributes 
january 2016 by dunnettreader
Mark Graber - The Oxford Handbook of the U.S. Constitution | Balkinization:July 2015
Mark Tushnet, Sandy Levinson and I are happy to announce that The Oxford Handbook of the United States Constitution is now available -- The below will hopefully give people some sense of the contents and contributors. Efforts to provide comprehensive guides to the United States Constitution date from the framing and ratification of the United States Constitution. The Federalist was the first self-conscious handbook on the United States Constitution. Unlike the original and subsequent treatises or comprehensive guides, we were not motivated by a cheerleading impulse when we edited the 2015 Oxford Handbook of the U.S. Constitution. Although our Handbook contains no specific chapter on what might be termed the “adequacy” of the Constitution in the 21st century, the very structure of this text, as well as many specific entries raise questions relevant to such an inquiry. Comparing our contemporary Handbook of the United States Constitution with the original may shed some light on the incongruities that have manifested over time as contemporary citizens of the United States employ concepts grounded in late eighteenth century constitutional thought when operating a constitution in the early twenty-first century, as well as convincing many of you, we hope, to read the book and the many wonderful essays written by very distinguished scholars. -- downloaded pdf to Note
books  kindle-available  US_constitution  legal_history  US_politics  political_culture  legal_culture  Founders  Federalist  judiciary  judicial_review  SCOTUS  US_history  international_law  downloaded 
january 2016 by dunnettreader
Leo E. Strine - A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications :: SSRN - Journal of Corporation Law, 2015, Forthcoming (rev'd March 2015)
Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- This article connects the Supreme Court’s decision in Burwell v. Hobby Lobby to the history of “corporate paternalism.” It details the history of employer efforts to restrict the freedom of employees, and legislative attempts to ensure worker freedom. It also highlights the role of employment in healthcare coverage, and situates the Affordable Care Act’s “minimum essential guarantees” in a historical and global context. The article also discusses how Hobby Lobby combines with the Supreme Court’s earlier decisions in Citizens United and National Federation of Independent Business v. Sebelius to constrain the government’s ability to extend the social safety net, and shows how those decisions put pressure on corporate law itself. -- Note: The article was the subject of lectures to the Securities Regulation Institute of Northwestern University School of Law and the American Constitution Society Student Chapter at Harvard Law School. -- PDF File: 76 -- Keywords: Hobby Lobby; corporate law; corporate paternalism -- right on Leo! -- downloaded pdf to Note
article  SSRN  US_constitution  US_legal_system  corporate_law  corporate_citizenship  corporate_governance  shareholders  freedom_of_conscience  SCOTUS  labor  labor_standards  employers  employee_benefits  welfare_economics  welfare_state  health_care  campaign_finance  downloaded 
july 2015 by dunnettreader
Lyman Johnson, David Millon - Corporate Law after Hobby Lobby :: SSRN (rev'd Jan 2015) THE BUSINESS LAWYER, Vol 70 - November 2014
Lyman Johnson, Washington and Lee University - School of Law; University of St. Thomas, St. Paul/Minneapolis, MN - School of Law -- David Millon
Washington and Lee University - School of Law -- We evaluate the U.S. Supreme Court's controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation 'for any lawful purpose.' We elaborate on this important point and also explain what it means for a corporation to 'exercise religion.' In addition, we address the larger implications of the Court's analysis for an accurate understanding both of state law's essentially agnostic stance on the question of corporate purpose and also of the broad scope of managerial discretion. -- PDF File: 33 -- Keywords: Corporate purpose, Corporate personhood, Shareholder wealth maximization, Shareholder primacy, Corporate social responsibility -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_citizenship  corporate_governance  shareholders  freedom_of_conscience  SCOTUS  civil_liberties  corporate_control  corporate_personhood  limited_liability  corporations-closely-held  corporations  CSR  shareholder_value  shareholder_voting  profit_maximization  law-and-economics  labor_law  employee_benefits  power-asymmetric  capital_as_power  constitutional_law  downloaded 
july 2015 by dunnettreader
Joseph Fishkin, Heather Gerken - The Party's Over: McCutcheon, Shadow Parties, and the Future of the Party System :: SSRN - Supreme Court Review, Vol. 2015, No. 1, 2015
Joseph Fishkin, University of Texas School of Law -- Heather Gerken, Yale University - Law School -- McCutcheon v Federal Election Commission can only be understood against the deep shifts taking place in American politics. By some measures, party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups” (..) which have taken over a startling array of core party functions. But these “outside groups” are are deeply and durably aligned with one party or the other and run by consummate party insiders. That’s why we call them shadow parties.(..) What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large. Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. (..) They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful – the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites – and largely eliminate their already-diminished role within the party writ large. The shift toward shadow parties thus raises important questions about the future of American politics and who ought to control political parties. -- PDF File: 28 -- downloaded pdf to Note
paper  SSRN  SCOTUS  elections  campaign_finance  parties  partisanship  political_participation  politics-and-money  shadow_parties  business_influence  democracy_deficit 
july 2015 by dunnettreader
Robert Reich (Why We Must Fight Economic Apartheid in America)
Almost lost by the wave of responses to the Supreme Court’s decisions last week upholding the Affordable Care Act and allowing gays and lesbians to marry was…
Instapaper  SCOTUS  US_politics  racism  housing  segregation  equality  inequality-opportunity  inequality  education-K-12  discrimination  from instapaper
july 2015 by dunnettreader
Jack M. Balkin -The Last Days of Disco: Why the American Political System is Dysfunctional :: SSRN - Boston University Law Review, Vol. 94, 2014
...what looks like constitutional dysfunction is actually constitutional transition, (..)Americans last experienced this sense of dysfunction during the late 1970s and early 1980s (..) the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. (1) the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But (2) the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end. A long and frustrating transition will have important side effects. (1) a dysfunctional Congress tempts the Executive to act unilaterally, (..). Future presidents may use these new sources of power even when the period of dysfunction has passed. (2) sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court's recent work. -- PDF File: 40 -- downloaded pdf to Note
article  SSRN  US_politics  US_constitution  SCOTUS  exec_branch  US_President  Congress  US_judiciary  separation-of-powers  faction  GOP  Democrats  legal_history  political_change  political_culture  legal_culture  originalism  change-social  power-asymmetric  ideology  conflict  competition-political  constitutional_law  constitutional_regime  government-forms  government-roles  polarization  policymaking  political_gridlock  limited_government  judicial_review  conservatism  right-wing  political_participation  rule_of_law  instrumentalist  means-justify-ends  legitimacy  downloaded 
july 2015 by dunnettreader
David Gans - The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights | Balkinization - June 2015
Cases decided by a single federal district court judge (..) and are very rarely accepted for Supreme Court review. (..) the Supreme Court has complete control over its certiorari (discretionary) docket, and can refuse to hear a case for any reason without setting any judicial precedent for the future. But 3-judge court cases are radically different, as the Supreme Court is required to act on a direct appeal from the decision of a 3-judge court. When such an appeal is filed, the Justices have 3 options—either to summarily affirm, to dismiss the appeal for want of a substantial federal question, or to accept the case for full review. Unlike a denial of a petition for a writ of certiorari, each of these actions sets a precedent for the future. Because the Justices are often wary of setting a precedent without full briefing, direct appeals from 3-judge courts quite often receive full review on the merits. (..) The Supreme Court agreed to review Shelby County despite the absence of a circuit split, producing a landmark ruling gutting a key part of the Voting Rights Act and striking a blow against the power of Congress to protect the right to vote free from racial discrimination. Shelby County is the exception that proves the rule. Virtually all the big Roberts Court cases that have changed the ground rules for our democracy have been direct appeals from 3-judge courts. What this reflects is a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them.
Instapaper  SCOTUS  US_constitution  constitutional_law  judiciary  judicial_review  conservative_legal_challenges  voting  rights-legal  constitutional_regime  Roberts_Court  campaign_finance  partisanship-judiciary  from instapaper
june 2015 by dunnettreader
Thomas Colby and Peter J. Smith - The Return of Lochner :: SSRN - April 2015 - Cornell Law Review, Vol. 100, No. 527, 2015
Both at GW Law School - For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” (..) conservatives are ready, once again, to embrace Lochner — although perhaps not in name — by recommitting to some form of robust judicial protection for economic rights. (...) this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought (..) and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. (..) how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the 20thC. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly — and perhaps never to enforce rights not specifically identified in the Constitution — the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. — conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground. - 77 pages saved to SSRN briefcase
article  SSRN  SCOTUS  libertarianism  US_constitution  US_legal_system  legal_history  legal_theory  legal_reasoning  constitutional_law  civil_liberties  liberty-negative  laisser-faire  freedom_of_contract  freedom_of_conscience  equality  judicial_review 
june 2015 by dunnettreader
Sandy Levinson - The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism" | Balkinization - June 2015
Consider the following passages from the anguished dissents (..by) Scalia and Alito in Obergefell: [re their "indifference" re substance of SSM - notes how much this clashes with their Catholic beliefs that insist on moral absolutes determined by "natural law"] -- Federalism is (..) as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality (..) there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states. But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery. (,.) Douglas professed himself indifferent to the moral critique of slavery. (..) What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom. Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners. Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too. The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.
Instapaper  SCOTUS  constitutional_law  19thC  states_rights  federalism  slavery  morality-conventional  morality-divine_command  morality-Christian  rights-legal  natural_law  natural_rights  positivism-legal  Holmes  Douglas_Stephen  Lincoln  antebellum_era  abolition  marriage  Thomism  Thomism-21stC  Catholics  Papacy  from instapaper
june 2015 by dunnettreader
Jack Balkin - Bye, Bye, Glucksberg | Balkinization - June 2015
Justice Kennedy's opinion in Obergefell unceremoniously overrules Washington v. Glucksburg without saying so directly, as the Chief Justice well understands: "It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process." A little translation is in order here. Glucksberg is not, in fact, the leading modern case on substantive due process and implied fundamental rights. That would be Griswold or Eisenstadt (as reinterpreted by later courts), or (shudder!) Roe, or Casey or Lawrence, or now, Obergefell. Rather, Glucksberg is the case that people opposed to implied fundamental rights wish were the leading case and regularly cite as if it were the leading case that applied to every such question. Chief Justice Rehnquist--no fan of implied fundamental rights himself--wrote Glucksberg in 1997 precisely to lay down a marker so that federal judges would stop trying to imply fundamental rights. He didn't succeed.
Instapaper  SCOTUS  US_constitution  constitutional_law  due_process  rights-legal  conservative_legal_challenges  equality  precedent  Roberts_Court  legal_reasoning  from instapaper
june 2015 by dunnettreader
Jack Balkin - Obergefell and Tradition | Balkinization - June 2015
It is tempting to identify the dissenters with Burke, and view Kennedy as opposed to Burkeanism. Certainly the dissenters would like to brand Kennedy as a revolutionary or Jacobin, heedlessly destroying a valued institution at the center of society. But this is a caricature of what Kennedy is actually doing in his opinion. Kennedy's use of tradition is also Burkean in its own way. He simply emphasizes different features of Burke's thought. In particular Kennedy emphasizes change through respect for tradition that results from discussion and lived experience--as opposed to change that occurs through violence and revolutionary upheaval. Kennedy emphasizes the natural evolution and growth of previous commitments through debate, contestation and social practice. Our commitments evolve as they we apply them to changed factual circumstances and our wisdom grows through encountering those changed circumstances in practical terms. We can have greater confidence in our judgments achieved in this way because, unlike previous generations, we have the benefit of their experience, while they do not have the benefit of ours.
Instapaper  US_constitution  SCOTUS  constitutional_law  tradition  Burke  epistemology-social  epistemology-moral  rights-legal  legal_reasoning  marriage  family  family_law  from instapaper
june 2015 by dunnettreader
Jonathan Chait - Gay Marriage and the Modern Social Revolution -- NYMag - June 2015
The Supreme Court’s decision affirming marriage equality hastens what was already a fait accompli — public opinion has embraced the equal right to marriage at…
Instapaper  US_politics  US_society  US_legal_system  US_constitution  SCOTUS  change-social  equality  civil_liberties  homosexuality  marriage  LGBT  from instapaper
june 2015 by dunnettreader
Noah Millman - An Anthropological Approach to Gay Marriage | The American Conservative - April 2015
This is an absolutely superb post, pointing out the universal logic across cultures to establish default rules for managing the key elements of family law shared across nuclear and extended families which the society has an interest in ensuring are dealt with in a regular rather than ad hoc fashion -- reproduction of the society through the production of children and their upbringing and material survival, and property relations, especially inheritance. He uses the Old Testament, and the shifts in rules as the culture developed (marrying the widow of one’s brother to ensure that the brother had an inheritance line within the family, which "law" has obviously been relaxed or abandoned as the clan or extended family ceased to be the organizing structure for families and property), as well as common practices (implicit rules) when the standard pattern of relations wasn't working (the patriarchs using concubines to produce heirs when their wives were barren). He also gives the example in Kenya of an unmarried older woman with no children who marries a younger woman, serves as the 'husband" in the marriage, and the younger woman uses men to get pregnant and "bear the children of the all-female family" who will inherit the "husband's" property. The contemporary state in the US has an interest in providing default rules for marriage, family formation and child care, and property relations including inheritance -- and since WE HAVE same-sex marriages that present exactly the same legal issues, the state has an interest in extending its default rules to those arrangements.
politics-and-religion  family  property  inheritance  marriage  US_legal_system  SCOTUS  Old_Testament  religion-fundamentalism  Biblical_authority  religious_culture  culture_wars  homosexuality  civil_liberties  gender_history  gender-and-religion  Instapaper  from instapaper
may 2015 by dunnettreader
Mark Elliott Budnitz - The Development of Consumer Protection Law, the Institutionalization of Consumerism, and Future Prospects and Perils (2010) :: SSRN
Georgia State University College of Law -- Georgia State University Law Review, Vol. 26, No. 4, p. 1147, 2010 -- The article examines major developments in the statutes, regulations and Supreme Court cases that have regulated consumer financial services since 1969. Major victories and defeats in the battle for laws protecting consumers are described. Consumer protection law is analyzed within the context of consumerism and its role as a movement for social change and law reform. The article describes the development of a permanent organizational structure for engaging in consumer law reform. This development has resulted in the institutionalization of consumerism and its values have become embedded in society’s values, better ensuring its survival. Finally, the article explores the prospects of the continued development of strong consumer protection law and the perils it faces in the future. -- Number of Pages in PDF File: 64 - Keywords: consumer protection, consumers, financial services, consumer protection law, consumerism, social change, reform, consumer law, legal history. -- didn't download
article  SSRN  US_legal_system  political_culture  legal_history  20thC  21stC  business-norms  business-and-politics  consumer_protection  consumerism  financial_system  financial_access  financial_regulation  reform-legal  reform-finance  SCOTUS  financial_innovation  EF-add 
november 2014 by dunnettreader
Richard Briffault - The Uncertain Future of the Corporate Contribution Ban (Valparaiso University Law Review, Forthcoming) July 25, 2014 :: SSRN
Columbia Law School -- Columbia Public Law Research Paper No. 14-405 -- Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened over a century the federal corporate contribution ban is still on the books. Twenty-one states also prohibit corporate contributions to candidates in state elections. SCOTUS sustained the federal corporate contribution ban as recently as 2003 in FEC v. Beaumont, but that decision and the corporate contribution ban today rest on shaky ground. The Roberts Court has demonstrated little respect for either legislated campaign finance restrictions or the Court’s own campaign finance precedents. -- In Citizens United and McCutcheon, the Court emphasized that campaign finance restrictions cannot be justified by the goal of reducing the political power of the wealthy. Although much of the impetus for the corporate contribution ban is public anxiety over corporate wealth and power, the shareholder-protection and anti-circumvention justifications are not triggered by concern about corporate wealth but, rather, reflect other key features of the corporate form – its artificial existence as a legal to achieve ends desired by the individuals who have created it, and the potential for those who control the corporation to exploit shareholders. These two interests work in tandem, with shareholder-protection having greater purchase for multi-shareholder publicly-held entities, and anti-circumvention more relevant for single-shareholder, closely-held or nonprofit corporations. Together, they make the case for the corporate contribution ban for reasons other than the equality-promoting goal that Citizens United and McCutcheon so vehemently rejected. -- another paper beginning to deal with inherent conflict between management and shareholder interests in political spending that puts 2 conservative trends on collision
article  SSRN  SCOTUS  constitutional_law  corporate_law  campaign_finance  elections  corporate_governance  shareholders  shareholder_value  investors  management  principal-agent  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Leo E. Strine , Nicholas Walter - Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United (Cornell Law Review, Forthcoming) - August 1, 2014 :: SSRN
Leo E. Strine Jr. - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- Nicholas Walter, Yale University -- Harvard Law School John M. Olin Center Discussion Paper No. 788 -- One important aspect of Citizens United has been overlooked: the tension between the conservative majority’s view of for-profit corporations, and the theory of for-profit corporations embraced by conservative thinkers. This article explores the tension between these conservative schools of thought and shows that Citizens United may unwittingly strengthen the arguments of conservative corporate theory’s principal rival. Citizens United posits that stockholders of for-profit corporations can constrain corporate political spending and that corporations can legitimately engage in political spending. Conservative corporate theory is premised on the contrary assumptions that stockholders are poorly-positioned to monitor corporate managers for even their fidelity to a profit maximization principle, and that corporate managers have no legitimate ability to reconcile stockholders’ diverse political views. Because stockholders invest in for-profit corporations for financial gain, and not to express political or moral values, conservative corporate theory argues that corporate managers should focus solely on stockholder wealth maximization and non-stockholder constituencies and society should rely upon government regulation to protect against corporate overreaching. Conservative corporate theory’s recognition that corporations lack legitimacy in this area has been strengthened by market developments that Citizens United slighted: that most humans invest in the equity markets through mutual funds under section 401(k) plans, cannot exit these investments as a practical matter, and lack any rational ability to influence how corporations spend in the political process. -- Keywords: Corporate governance, political spending, Citizens United, conservative corporate theory, regulatory externalities, lobbying, profit maximization, constitutional law, election law, labor law
article  SSRN  SCOTUS  legal_history  legal_system  legal_theory  corporate_law  corporate_governance  principal-agent  management  shareholders  shareholder_value  campaign_finance  lobbying  elections  labor_law  US_constitution  constitutional_law  public_policy  interest_groups  oligarchy  rent-seeking  investors  savings  capitalism  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Ahmed White - The Wagner Act on Trial: The 1937 'Little Steel' Strike and the Limits of New Deal Reform (May 29, 2014) :: SSRN
University of Colorado Law School -- The National Labor Relations Act of 1935, or Wagner Act, played a crucial role in shaping the New Deal and eventually transforming the economic, political, and legal foundations of modern America. Although many aspects of the statute’s history, including its relationship to the rise of industrial unionism and the epic struggle to secure its constitutionality, have been well told by historians and legal scholars, key elements of its story remain obscured by misconceptions, oversight, and outright myth. Not least among these areas of uncertainty is how the new law actually functioned in the months and years immediately after the Supreme Court upheld its constitutionality, and what its fate in this crucial time says about the nature of the New Deal itself. This article undertakes to shed light on these questions by unfolding the history of one of the most important events in the Second New Deal period: the “Little Steel” Strike of 1937. Drawing on a host of sources, including five major archival collections, this article tells the story of this dramatic and violent episode, including its legal history. Presenting the strike as a key test of the Wagner Act and a critical bellwether of the New Deal, the article documents not only the virtues of new regime in labor rights just as it emerged from the shadow of unconstitutionality, but also congenital shortcomings in the labor law that have undermined workers’ rights ever since. In a further challenge to conventional narratives of the period, the story of the strike exposes the remarkable degree to which the power of the business community survived, relatively undiminished, the Wagner Act and the political changes that accompanied it. Moreover, giving credence to a broader literature on New Deal law and policy, the article presents the strike and litigation surrounding it as proof of the continuing weakness of the New Deal and as key moments in the conservative turn that marked course of reform in the late 1930s.
paper  SSRN  US_history  20thC  entre_deux_guerres  New_Deal  labor  labor_law  labor_history  unions  big_business  SCOTUS  power-asymmetric  capitalism  public_disorder  reform-legal  reform-economic  downloaded  EF-add 
august 2014 by dunnettreader
Ronald Collins - Ask the author: Robert Post – Citizens Divided : SCOTUSblog - August 2014
The following is a series of questions posed by Ronald Collins on the occasion of the publication of Citizens Divided: Campaign Finance Reform & the Constitution by Robert C. Post, with commentaries by Pamela Karlan, Lawrence Lessig, Frank Michelman, and Nadia Urbinati. -- The central thesis of my book is to distinguish between two forms of American constitutional self-government. In the first and historically prior form of self-government, self-determination consists of a process of representation mediated by elections. I call this view of self-government “representation.” In the second form of self-government, which did not emerge until the twentieth century, self-determination consists of processes of ongoing communication constituted by First Amendment rights. I call this view of self-government “discursive democracy.” It turns out that representation and discursive democracy possess entirely different constitutional structures and properties. The tension between representation and discursive democracy is at the heart of the doctrinal confusion of cases like Citizens United. -- Question: You write that the “Justices who joined the majority opinion in Citizens United did not seem aware that the constitutional value of electoral integrity is implicit in their own reliance on First Amendment rights.” In this regard you add that your hope in this book is to “build a bridge between the majority and the dissent by illuminating the entailments of our own contemporary commitment to First Amendment ideals.” Tell us about that “bridge” you hope to construct between the Court’s so-called conservative and liberal wings?
books  reviews  kindle-available  US_constitution  SCOTUS  free_speech  elections  political_participation  legitimacy  campaign_finance  corporate_citizenship  corporate_law  democracy  discourse-political_theory  deliberation-public  representative_institutions  oligarchy  EF-add 
august 2014 by dunnettreader
"Reclaiming Egalitarianism in the Political Theory of Campaign Finance " by Frank Pasquale | 2008 University of Illinois Law Review 599
Keywords - campaign finance, egalitarianism, political theory, Rawls, deliberative democracy, politics -- Recent advocacy for campaign finance reform has been based on an ideal of the democratic process which is unrealistic and unhelpful. Scholars should instead return to its egalitarian roots. This article examines how deliberative democratic theory became the main justification for campaign finance reform. It exposes the shortcomings of this deliberativist detour and instead models campaign spending as an effort to commodify issue-salience. Given this dominant function of money in politics, a more effective paradigm for reform is equalizing influence. Advocates of campaign regulation should return to the original principles of reformers; not an idealized vision of the democratic process, but pragmatic concerns about moneyed interests acquiring too much influence over the nation's politics. -- downloaded pdf to Note
article  political_philosophy  legal_theory  constitutionalism  democracy  political_participation  egalitarian  US_constitution  free_speech  plutocracy  interest_groups  legitimacy  campaign_finance  US_legal_system  SCOTUS  media  corruption  franchise  political_culture  political_economy  downloaded  EF-add 
july 2014 by dunnettreader
Richard Posner: Shelby County: Striking down the Voting Rights Act is all about conservatives’ imagination. - Slate June 2013
Roberts' game with "equal sovereignty" is a disreputable bit of dreaming up nonexistent constitutional "principles"
High praise for Ginsburg's dissent -
Opinion pdf downloaded to Note - Ginsburg's dissent starts p 32 of 68
SCOTUS  US_politics  US_constitution  civil_liberties  elections  republicanism  downloaded 
july 2013 by dunnettreader
Jack Balkin: Balkinization: Windsor and the Constitutional Prohibition against Class Legislation June 2013
Re Kennedy's opinion:
The ideas in his opinion may seem strange to people who grew up learning post-1970s equal protection and due process jurisprudence. But they would not be at all strange to people living in the nineteenth century, especially at the time the Reconstruction Amendments were adopted.

A key idea in the nineteenth century was that of class legislation. Class legislation is legislation that picks out a group of people for special benefits or special burdens without adequate public justification.  The idea was that laws should be general, not special, and serve a public purpose, not simply the interests of some powerful group in society.  When Andrew Jackson first invokes the idea of equal protection in his 1832 bank veto message, his objection is that the law is unequal because Congress has given special privileges to wealthy financiers, creating a new kind of aristocracy of wealth and privilege. (The idea of class legislation had overtones of anti-republicanism). The flip side of the notion that legislatures could not great special benefits  was that legislatures could not impose special burdens or unjustifiably single out people or groups for disapproval or harm.  This idea was connected to, although not identical with, the idea of bills of attainder, and the creation of caste by law.

Note that for the Reconstruction Republicans, these ideas came not from the Fourteenth Amendment, but from the Fifth Amendment, and from the idea of republican government.

The ideas in his opinion may seem strange to people who grew up learning post-1970s equal protection and due process jurisprudence. But they would not be at all strange to people living in the nineteenth century, especially at the time the Reconstruction Amendments were adopted.
SCOTUS  US_constitution  republicanism  elites  EF-add 
july 2013 by dunnettreader
Mark Graber: Balkinization: And the (1915, 2013) Winner is . . . Business |June 2013
the conservative majority is reverting to judicial practices before the New Deal, but not in the way many commentators expected.  The justices are not restoring ancient doctrinal categories or dramatically cutting back on civil liberties.  Rather, as was the case in 1915ish, the big winner is business.  When business is not involved, the judicial majority is often at least as liberal if not slightly more liberal than the rest of the ruling regime.
SCOTUS  US_constitution  US_politics  civil_liberties  business  unions 
july 2013 by dunnettreader

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