Archive for the ‘Politics’ Category

Minnesota Marriage and Political Strategy

posted by William McGeveran

I’m proud that my adopted home state of Minnesota became the 12th state to legalize same-sex marriage this afternoon. I’m also proud of my law school colleague Dale Carpenter, who was central to efforts to pass the measure. And I’m looking forward to some weddings.

There are lots of lessons about politics and gay rights to draw from today’s victory. But I want to emphasize a more general lesson about ballot measures.

Two years ago this month, the Minnesota Legislature, then controlled by a newly-installed Republican majority, voted to hold a statewide referendum on marriage. A proposed amendment to the state constitution on the November 2012 ballot would define marriage as between a man and a woman. Unlike many states, Minnesota does not allow citizen-initiated referenda. But a simple majority of the legislature can put proposed constitutional amendments to the voters without the governor’s assent.

Some insiders have claimed that the rationale for doing so was, at least in part, a raw political one. Advancing a measure important to social conservatives would drive up their turnout, helping preserve Republican legislative control. Surely that must have been at least part of it, along with a substantive desire to thwart same-sex marriage in Minnesota.

Whatever the reason, this turned out to be a political strategy failure of epic proportions. In retrospect, the scale of this miscalculation is stunning. Opponents of the amendment organized, raised over $10 million, and coalesced around a new strategy of personalizing marriage issues. The 31-year-old strategist brought on to manage the campaign against the amendment turned out to be a wunderkind. The amendment failed, 52.5% to 47.5%. A month beforehand, I would have predicted the reverse numbers. Not only that, but in a landslide that surprised everyone I know, voters also rejected a voter ID amendment, turned out a Republican U.S. House member, and flipped both chambers of the state legislature back to the Democrats by significant margins. The amendment drove turnout all right — just not the voters its proponents wanted. (The same appears to have happened in neighboring Wisconsin.)

And today was the final kicker. Two years ago, legislation actually allowing same-sex marriage was a pipe dream. Even at the beginning of 2013, it wasn’t clear if a bill would happen. Once again, I would have bet against it. But the sleeping grass-roots giant awakened by the amendment did not go back to bed. By all accounts, the organization that didn’t even exist two years ago pushed the measure through against considerable odds.

So, one other moral of this story: when it comes to referenda, be careful what you wish for.

  May 14, 2013 at 10:43 pm   Posted in: Election Law, LGBT, Politics   Print This Post   No Comments

This is what evil looks like

posted by Kaimipono D. Wenger

A newly published Memoir from Guantanamo provides a stunning, vivid, and highly personal description of things that the United States has done — sleep deprivation, temperature extremes, beatings, humiliation — to dozens of people who have never been charged with any crime. No wonder so many Guantanamo detainees are now on hunger strike. I guess President Bush was right that the Iraq war would show us an axis of evil. I just didn’t realize that would consist of my own country’s actions.

It’s time to do the right thing, Mr. President. Let’s close Guantanamo.

  April 30, 2013 at 5:27 pm   Posted in: Current Events, Politics   Print This Post   No Comments

“The Divine Institution of Marriage”: An Overview of LDS Involvement in the Proposition 8 Campaign

posted by Kaimipono D. Wenger

I’ve just posted to SSRN my article in the forthcoming St. John’s Journal of Civil Rights and Economic Development. This article is part of the recent Symposium on Same-Sex Marriage at St. John’s.

My article is largely descriptive, setting out in some detail the LDS (Mormon) church’s actions and statements relating to Proposition 8. It chronicles a significant amount of factual material that has not been discussed at all in the existing legal literature. It may be especially relevant to people who have an interest in Proposition 8, same-sex marriage issues, gay rights issues generally, or LDS church issues generally. Full abstract follows past the jump: Read the rest of this post »

  April 23, 2013 at 9:37 pm   Posted in: LGBT, Politics, Religion   Print This Post   No Comments

Defending Citizens United?

posted by Jay Kesten

My thanks to Danielle and her co-bloggers for inviting me to share some of my thoughts.  This is my first foray into blogging, and I’m thrilled to join you for awhile.  I’d like to start by discussing a current project, which examines the internal governance of corporate political activity.  Comments, suggestions and critiques are most welcome.

Corporate political activity has long been an exceptionally contentious matter of public policy.  It also raises a hard and important question of corporate law:  assuming corporations can and will engage in political activity, who decides when they will speak and what they will say?  In several cases, the Supreme Court has provided a relatively clear, albeit under-developed, answer:  ”[u]ltimately, shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues.”  (First Nat’l Bank of Boston v. Bellotti, cited with approval in Citizens United v. FEC).

This corporate law aspect of the decision has attracted substantial criticism alongside widespread calls for major reforms to corporate and securities laws.  Some argue that the Supreme Court misunderstands the reality of modern corporate law, insofar as shareholders have little practical ability to constrain managerial conduct.  Others question why political decisions should be made by either shareholders or managers, rather than some broader group of corporate stakeholders.  A third group claims that political activity is just another corporate decision protected by the business judgment rule.  Thus, empowering shareholders in this regard would improperly encroach on the board’s plenary decision-making authority.

Yet, despite these concerns, there may be pragmatic and normative merit to the Supreme Court’s approach.  In a current paper – “Democratizing Corporate Political Activity” – I present a case for shareholder regulation of corporate political activity through their power to enact bylaws.  I’ll describe the argument in more detail in subsequent posts, but, briefly, I present three normative justifications for this governance structure.  First, it may mitigate the unusual and potentially substantial agency costs arising from manager-directed corporate political activity.  Second, it may increase social welfare by: (i) reducing deadweight losses and transaction costs associated with rent-seeking; and (ii) making corporations less vulnerable to political extortion.  Third, if corporate speech can shape our society’s distributional rules, corporate law should not interpose an additional representative filter in the democratic process.  That is, we should not assume that investors – merely by purchasing stock in a public company, often through an intermediary such as a mutual fund – grant managers the unilateral authority to engage in political activity on their behalf.

With that said, I should be clear upfront that there are important challenges and objections to each of these arguments.  I will describe the main concerns as I proceed.

The next post will lay out the Supreme Court’s vision of corporate political activity, and explain why the shareholder bylaw power best fits the Court’s description of shareholder democracy in this context.

  March 30, 2013 at 7:57 pm   Posted in: Corporate Law, Legal Theory, Political Economy, Politics   Print This Post   2 Comments

This should be easy: Yes or no?

posted by Kaimipono D. Wenger

This should be easy: Yes or no? (kw)

  March 7, 2013 at 1:24 am   Posted in: Asides, Politics   Print This Post   No Comments

Senator Rand Paul Drones On

posted by Ryan Calo

Concurring Opinions readers might get a kick out of the fact that, at one point in his twelve hour, old school filibuster of John Brennan’s nomination as CIA director this evening, Senator Rand Paul reads aloud from my 2011 online essay in Stanford Law Review on the domestic use of drones.  Video of the clip here.  I suppose it beats a phone book!

  March 7, 2013 at 12:43 am   Posted in: Politics, Privacy (National Security)   Print This Post   5 Comments

The Stanford Law Review Online: School Security Considerations After Newtown

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.

He concludes:

The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.

Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.

  February 11, 2013 at 10:45 am  Tags: Civil Rights, Education, Policy, school security, schools  Posted in: Civil Rights, Education, Empirical Analysis of Law, Law Rev (Stanford), Politics   Print This Post   No Comments

For Transparency Sake?

posted by Danielle Citron

Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government.  The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era.  Now, four years later, drastic change in government secrecy has not materialized.  Let’s take DOJ’s release to two Congressional intelligence committees the OLC memo authorizing the use of drone strikes to kill American civilians abroad considered terrorists.  According to the New York Times, the administration had until now refused to even officially acknowledge the existence of the documents, which had been reported about in the media.  This recent revelation is just one example of what we say–a commitment to transparency–is not what we do.  Consider that in a 2010 memo, the DOJ endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.”  Despite this stated goal and the stated goals of the Open Government memorandum, the Sunlight Foundation reports that DOJ is “withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012.”  That is not to say that we have made no progress.  As the Sunlight Foundation explains, the Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online whereas Bush administration’s published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005.

  February 7, 2013 at 6:22 pm   Posted in: Administrative Law, Politics   Print This Post   4 Comments

Shane on Noel Canning

posted by Frank Pasquale

The recent DC Circuit opinion invalidating the President’s recess appointments to the NLRB may alter the balance of power between the branches as much as INS v. Chadha did. Peter Shane (no great fan of executive power grabs) makes the case:

[In Chadha, the Supreme Court said that the Constitution] gives Congress only one way to legislate: Majorities in both the House and the Senate must agree on a text to enact, and the president must sign it, or two-thirds of each House must vote to override the presidential veto. Neither the House, nor the Senate is entitled to make law all by itself. In a January 25 ruling, however, the U.S. Court of Appeals for the DC Circuit pretty much assured the Senate exactly that power. Even worse, it afforded that power not to a majority of senators, but to a minority. . . .

Read the rest of this post »

  January 27, 2013 at 8:35 pm   Posted in: Constitutional Law, Politics   Print This Post   7 Comments

Schneier Calls Out Papers on How Terroristist Groups End

posted by Deven Desai

Bruce Schneier noted some research by Rand about How Terrorist Groups End. The abstract

Abstract: How do terrorist groups end? The evidence since 1968 indicates that terrorist groups rarely cease to exist as a result of winning or losing a military campaign. Rather, most groups end because of operations carried out by local police or intelligence agencies or because they join the political process. This suggests that the United States should pursue a counterterrorism strategy against al Qa’ida that emphasizes policing and intelligence gathering rather than a “war on terrorism” approach that relies heavily on military force.

likely rings true to many who question the use of drones etc. (The comments on Bruce’s page get into some of this point).

To me the fact that RAND put the paper out is interesting. I can never tell whether RAND or what RAND is about. It would seem that claims that RAND is only going to support the government’s goals might be challenged here. Also Bruce calls out the work of Max Abrahms who in 2008 and 2011 addressed these ideas as well. I urge you read the 2008 post and here is the 2011 abstract

The basic narrative of bargaining theory predicts that, all else equal, anarchy favors concessions to challengers who demonstrate the will and ability to escalate against defenders. For this reason, post-9/11 political science research explained terrorism as rational strategic behavior for non-state challengers to induce government compliance given their constraints. Over the past decade, however, empirical research has consistently found that neither escalating to terrorism nor with terrorism helps non-state actors to achieve their demands. In fact, escalating to terrorism or with terrorism increases the odds that target countries will dig in their political heels, depriving the nonstate challengers of their given preferences. These empirical findings across disciplines, methodologies, as well as salient global events raise important research questions, with implications for counterterrorism strategy.

Bruce was cool enough to include a link to the paper.

  November 15, 2012 at 9:57 pm   Posted in: International & Comparative Law, Military Law, Political Economy, Politics   Print This Post   6 Comments

A Grouchy Post About the Election

posted by Dave Hoffman

I’m on record as basically hating blogging by law professors about politics, never more so than when the election is near. Obviously, given the state of commentary on the more popular law professor blogs of late, too few agree with me about how unenlightening most political blogging by professors is.   Well, it takes all kinds!  And there’s always Orin Kerr, writing about actual cases, to read.

But here’s something we can all agree on, I would hope. Law professors have no business telling students who to vote for.  I wonder what percentage of the academy already has, or will, violate this simple rule in the next two days?  My bet: over 25%, and the age distribution would be illuminating. Some additional percentage have probably told their students that as lawyers-in-training they have an extra obligation to participate in the “civic duty” of voting. This, in my mind, is nearly as bad, since it is usually motivated by some implicit sense that the targets of the message are going to vote the way you want them to.

Whew. Glad I got that off my chest!

  November 4, 2012 at 9:16 pm   Posted in: Politics   Print This Post   12 Comments

Stanford Law Review Online: The Hunt for Noncitizen Voters

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

  October 31, 2012 at 9:30 am  Tags: Civil Rights, Constitutional Law, Election law, Immigration, Politics, voter rights  Posted in: Civil Rights, Constitutional Law, Election Law, Immigration, Law Rev (Stanford), Politics   Print This Post   No Comments

In case you missed it, ISPs now have a 6 Strikes Plan, A Whiff of ICANN?

posted by Deven Desai

Ah yes the ever-vigilant Internet democracy must have been watching, or maybe it agreed to ISP policing for copyright sort of like Google’s decision to take down search results for copyright issues. Who knows? The Shadow? Anyway, ISPs are now going to monitor usage to police copyright scofflaws. According to Wired, it is a six strikes plan

backed by the Obama administration and pushed by Hollywood and the major record labels to disrupt and possibly terminate internet access for online copyright scofflaws. … The plan, now four years in the making, [will trigger with] four offenses, [participating] residential internet providers {including AT&T, Cablevision Systems, Comcast, Time Warner Cable and Verizon] [will] initiate so-called “mitigation measures” (.pdf) that might include reducing internet speeds and redirecting a subscriber’s service to an “educational” landing page about infringement. The internet companies may eliminate service altogether for repeat file-sharing offenders, although the plan does not directly call for such drastic action.

The action reminds me a little of Stanford University policy on file sharing where three strikes means you are shut out of Internet access and must pay $1,000 to reactivate. As more and more of life is online, I wonder about such a broad stroke for copyright violators. Then again some countries take away driver’s licenses for drunk driving. The U.S.A. is more lax on that front, I think. I am surprised to see that the Center for Copyright Information has a mix of members including Gigi Sohn; as Tim Lee put it “The picks suggest that the architects of the “Copyright Alert” system may be making a serious effort to strike a balance between the interests of copyright holders and the rights of users.”

Tim explained, however, that the board “has little direct authority over the Copyright Alerts system. The real power lies in the hands of the CCI’s executive board, which is stocked with content companies and ISPs.” He has some faith that the advisory roles give the noisy exit power to “public interest advocates like Berman and Sohn some leverage” who “can always resign in protest, giving the CCI a black eye in the press.” I am not so sure that anyone will give a damn in a way that can change the system even if such an exit is needed.

I also wonder whther this is a whiff of ICANN. Tim explained (he is rather good isn’t he?) that “The Copyright Alerts system will provide users with an opportunity to appeal “alerts” to an independent entity. That independent review process will be overseen by the American Arbitration Association. The AAA will train independent reviewers who will, in turn, hear appeals by individual users.” Given the numbers needed and the way ICANN and the UDRP has operated, I am again a bit wary of how this will all play out.

Given the folks involved, I hope my concerns do not pan out. But I would say keep an eye on this one before someone has to say “Help me Obi Wan, err Google? You’re my only hope.” They may not be up for the battle either.

  October 11, 2012 at 8:01 pm   Posted in: DRM, Intellectual Property, Political Economy, Politics, Privacy, Web 2.0   Print This Post   No Comments

On Information Justice

posted by Mike Carroll

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

Read the rest of this post »

  September 21, 2012 at 11:13 am   Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade   Print This Post   No Comments

Congressional Gridlock

posted by Gerard Magliocca

My draft paper for the upcoming Notre Dame symposium on gridlock is here.  This is more tentative than what I normally post to SSRN, in part because I’m not convinced that I have a great answer about what (if anything) should be done about gridlock.

  September 14, 2012 at 9:56 pm   Posted in: Politics   Print This Post   3 Comments

Stanford Law Review Online: Pulling the Plug on the Virtual Jury

posted by Stanford Law Review

The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.

He concludes:

Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.

Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.

Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.

  September 13, 2012 at 10:00 am  Tags: Civil Rights, Courts, criminal justice, Criminal Law, Criminal Procedure, guantanamo bay, military commissions, security, War on Terror  Posted in: Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Law Rev (Stanford), Military Law, Politics   Print This Post   No Comments

Stanford Law Review Online: The Obama Justice Department’s Merger Enforcement Record

posted by Stanford Law Review

Continuing our dialog on antitrust enforcement, the Stanford Law Review Online has just published an Essay by Daniel A. Crane entitled The Obama Justice Department’s Merger Enforcement Record. Professor Crane responds to Carl Shapiro and Jonathan Baker’s criticism of his response to his earlier Essay:

My recent Essay, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, examined the three major areas of antitrust enforcement—cartels, mergers, and civil non-merger—and argued that, contrary to some popular impressions, the Obama Justice Department has not “reinvigorated” antitrust enforcement. Jonathan Baker and Carl Shapiro have published a response, which focuses solely on merger enforcement. Baker and Shapiro’s argument that the Obama Justice Department actually did reinvigorate merger enforcement is unconvincing.

He concludes:

Jon Baker and Carl Shapiro are smart, effective economists for whom I have great respect. I have few quarrels with how they or the Obama Administration in general conduct antitrust enforcement. The point of my essay was that antitrust enforcement has become largely technocratic and independent of political ideology. I have heard nothing that dissuades me from that view.

Read the full article, The Obama Justice Department’s Merger Enforcement Record by Daniel A. Crane, at the Stanford Law Review Online.

  September 6, 2012 at 3:03 pm  Tags: Antitrust, merger enforcemenet, mergers, Obama administration, Policy  Posted in: Antitrust, Corporate Law, Current Events, Empirical Analysis of Law, Law Rev (Stanford), Politics   Print This Post   No Comments

Stanford Law Review Online: Politicizing the Supreme Court

posted by Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

  August 30, 2012 at 9:30 am  Tags: constitution, Constitutional Law, Courts, founding, framers, history, Politics, Supreme Court  Posted in: Constitutional Law, Courts, Current Events, History of Law, Jurisprudence, Law Rev (Stanford), Politics, Supreme Court   Print This Post   No Comments

Stanford Law Review Online: Evaluating Merger Enforcement During the Obama Administration

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jonathan Baker and Carl Shapiro entitled Evaluating Merger Enforcement During the Obama Administration. Professors Baker and Shapiro take issue with Daniel Crane’s assertions in his Essay of July 18:

We recently concluded that government merger enforcement statistics “provide clear evidence that the Obama Administration reinvigorated merger enforcement, as it set out to do.” Three weeks later, in an article published in the Stanford Law Review Online, Professor Daniel A. Crane reached the opposite conclusion, claiming that “[t]he merger statistics do not evidence ‘reinvigoration’ of merger enforcement under Obama.”

Crane is simply wrong. The data regarding merger enforcement unambiguously support our conclusion and cannot reasonably be read to support Crane’s assertions. Crane’s conclusion regarding merger enforcement is inaccurate because he relies upon flawed metrics and overlooks or misinterprets other important evidence.

They conclude:

Our analysis of merger enforcement at the DOJ during the George W. Bush Administration—based on the enforcement statistics and more—showed that it was unusually lax and in need of reinvigoration. It is too early to reach a comparably definitive conclusion about merger enforcement at the DOJ during the Obama Administration, but nothing in Daniel Crane’s article seriously challenges our interpretation of the preliminary data as demonstrating that the necessary reinvigoration has taken place.

Read the full article, Evaluating Merger Enforcement During the Obama Administration by Jonathan Baker and Carl Shapiro, at the Stanford Law Review Online.

  August 21, 2012 at 9:30 am  Tags: Antitrust, bush administration, executive branch, FTC, merger enforcement, mergers, Obama administration, Politics  Posted in: Antitrust, Empirical Analysis of Law, Law Rev (Stanford), Politics   Print This Post   One Comment

The Partisan Foundations of Judicial Campaign Finance

posted by Michael Kang

The Center for American Progress has just issued a report on judicial campaign finance that documents the increasing costs of campaigning in judicial elections and raises alarm that “[i]nstead of serving as a last resort for Americans seeking justice, judges are bending the law to satisfy the concerns of their corporate donors.”  Jeffrey Toobin followed up in the New Yorker that “the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. . . . [b]ut it’s clear now that in many states you should worry—a lot.”

My colleague Joanna Shepherd and I study judicial campaign finance and argue that what is regularly missed in this simple narrative is the crucial role of the major parties.  In our empirical work, we find a very real relationship between contributions to judges and judicial decisions favorable to contributors, but the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger realities of modern judicial elections.  The Republican and Democratic Parties broker connections between contributors and their candidates, and we argue that parties, not elections, seem to be the key to money’s influence on judges.

In a new paper still in progress, The Partisan Foundations of Judicial Campaign Finance, we identify broad left- and right-leaning political coalitions, allied with the Democratic and Republican Parties, whose collective contributions exercise systematic influence across the range of decisions by judges who receive their money.  The parties appear to coordinate judicial campaign finance under partisan elections where their investment and involvement is greatest, and what is more, we find that the robust relationship between money and judicial decisions largely disappeared in our data for judges elected in nonpartisan elections where parties are relatively less involved.

In addition, we go on to find a striking partisan asymmetry between Republicans and Democrats in judicial campaign finance.  Money from conservative groups in the Republican coalition, as well as from the party itself, is associated with more conservative judicial decisionmaking by Republican judges, even controlling for individual ideology.  However, decisionmaking by Republican judges is not responsive to money from liberal sources.  Decisionmaking by Democratic judges, by contrast, is influenced by campaign support from both liberal and conservative sources and thus cross pressured in opposite directions.  The result is that judicial campaign finance reinforces party cohesion for Republicans while undermining it for Democrats.  Campaign finance thus predicts judicial decisionmaking by judges from both parties in some sense, but is much more successful in serving partisan ends for Republicans, netting out in a conservative direction between the two parties.

  August 15, 2012 at 3:34 pm   Posted in: Constitutional Law, Corruption, Courts, Economic Analysis of Law, Election Law, Politics   Print This Post   One Comment

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