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Courts and Effective Governance
Get PDFGovernments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” For our purposes, state capacity is the ability of a government-in-place to develop and implement policies that its leaders believe will improve national well-being. The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies.
How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? Of course, they can interpret constitutions and statutes to authorize government officials to use whatever capacity they have to implement their chosen policies
Countering the New Election Subversion: The Democracy Principle and the Role of State Courts
Get PDFAmong the threats to American democracy, the most serious may also be the most banal: future elections will be compromised by quiet changes to the law. State legislators across the country have introduced bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have created new criminal offenses that undermine professional election administration. While power-shifting legislation, audits, and criminal penalties advertise their fealty to law, they threaten the franchise and electoral integrity, as well as nonpartisan, expert election administration. Because of its ostensibly legal, even legalistic, character, however, the new election subversion complicates ordinary judicial countermand. Federal courts, in particular, have foreclosed many of their own means of responding to such measures.
This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ founding documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we explain how state courts might apply the democracy principle to address the new election subversion
A Religious Right to Abortion: Legal History and Analysis
Get PDFThere is a long and rich history of religious support, across a wide range of faith traditions, for the right to reproductive autonomy, including abortion. A number of religious denominations, including the Presbyterian Church, Reform and Conservative Judaism, the United Church of Christ, and the Unitarian Universalist Association, support a legal right to abortion in most or all circumstances. Several religious denominations have even — long before the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization — issued statements explaining that the right to reproductive health care is an essential aspect of their members’ religious freedom
Critical Race Theory: FAQ
Get PDFCRT is not a comprehensive theory of law. Instead, it is an invitation to consider the role that law, even “good” civil rights laws, plays in the creation and maintenance of racial injustice
The Impacts of Compulsory Prison Labor Ballot Initiatives on Pregnant & Postpartum Incarcerated Women of Color
Get PDFThe 13th Amendment to the United States Constitution purported to abolish the institution of slavery, but it created an exception for compulsory labor performed by people convicted of crimes. In November 2022, voters in Alabama, Vermont, Louisiana, Tennessee, and Oregon will be asked to vote on ballot initiatives that would strike language from their state constitutions that currently allows states to force incarcerated people to perform labor with minimal or no pay.1 This policy brief examines the legal language of these ballot initiatives and evaluates whether each measure, if approved by voters, will actually close the compulsory labor loophole. In addition, this policy brief focuses on the particular impact that these measures may have on incarcerated women of color.
This policy paper examines the legal language, legislative history, and practical effect of each of the ballot initiatives that aim to change state laws relating to prison labor, with an emphasis on how these proposals could impact incarcerated women. This paper presents a gendered analysis of compulsory prison labor by focusing on the reality that women, in comparison with men, are more likely to encounter a particular form of compulsory prison labor: being forced to perform work assignments during pregnancy and immediately after giving birth. Performing compulsory work assignments without proper accommodations while pregnant or postpartum can lead to negative physical and mental health outcomes, including death
Biden Administration Revises Federal Government Position on Validity of the Equal Rights Amendment
Get PDFToday the Department of Justice (DOJ) Office of Legal Counsel (OLC) released a new opinion on the ratification of the Equal Rights Amendment (ERA). This opinion revises a 2020 OLC opinion issued under the Trump administration that declared the ERA a dead letter
Consensus Decision-Making and Legislative Inertia at the WTO: Can International Law Help?
Get PDFThe recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over law-making in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of agreements among a subset of WTO members and, if so, can they be integrated within the current regime absent amendments? Even though consensus decision-making does not necessarily lead to failed negotiations, it is undoubtedly a significant contributory factor when parties hold diverse and unaligned priorities. Contracts signed in the WTO involve increasingly heterogeneous players with diverse priorities. In this article, we argue that the first-best approach to moving away from the current legislative stasis at the multilateral level is to acknowledge that it is high time to consider how to allow an additional degree of ‘variable geometry’ within the multilateral trading system. A textual legal basis for this approach, however, is missing within the WTO legal order. An acceptable alternative would be to acknowledge that the WTO adjudicators (WTO panelists and Appellate Body members), and not the members, will be the ultimate gatekeepers deciding whether agreements among a subset of members can coexist as part of the current multilateral trade framework understood within the context of international law. A necessary precondition for thisalternative approach to flourish will, of course, be the resolution of the current judiciary crisis of the WTO. In either scenario, what will matter at the end of the day is that inter se agreements (that is, agreements among a subset of the WTO membership) will not affect the enjoyment of acquired rights by non-participants nor frustrate the objectives of the multilateral trading system
How Much Have the Oil Supermajors Contributed to Climate Change?
Get PDFIn the 40-year period 1980–2019, annual carbon dioxide (CO2) emissions from fossil fuel combustion, including flaring, increased by more than 80%, and total emissions from those sources represented approximately 83% of anthropogenic CO2 emissions (also including cement production and land-use change) without accounting for sinks. Understanding the carbon footprint of countries and companies along the oil value chain is fundamental to outlining paths to reduced reliance on fossil fuels. However, academic analyses of carbon footprints are limited by the lack of a reliable dataset and carbon accounting method that would allow comparisons across countries and companies
Of Autonomy, Sacred Rights, and Personal Marks
Get PDFThis Response examines three different senses in which the idea of autonomy might operate within trademark law’s rules relating to personal marks (i.e., marks that identity an individual) and shows that each of them is critically incomplete or too weak to independently sustain the justificatory burden for the domain. It then examines the worrisome possibility that courts’ allusions to autonomy here are little more than a trope for other considerations. It finally looks at how a genuine commitment to autonomy might be integrated into the principally market-driven framework of trademark law
The Institutional Mismatch of State Civil Courts
Get PDFState civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts that are in tension. First, state civil courts can function as violent actors. Second, they have become unseen, collective policymakers in our democracy. This mismatch and the roles that result should spur us to reimagine state civil courts as institutions. Such institutional change requires broad mobilization toward meeting people’s social needs across the branches of government and thus rightsizing state civil courts’ democratic role