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Erwin Chemerinsky
No full textErwin Chemerinsky at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1006/thumbnail.jp
The Administrative State and the Executive Establishment of Religion
Full text linkThis Article argues that the widespread incorporation of religion across the federal government constitutes the executive establishment of religion in violation of the First Amendment because it favors certain religious tenets or beliefs over others. The structural and substantive restraints imposed on presidential power have been inadequate to prevent executive establishment, and, in some ways, they have facilitated it. The rise of the modern administrative state coincided with a time of doctrinal flux in Establishment Clause jurisprudence and the enactment of the Administrative Procedure Act (APA). The absence of a clear, workable constitutional standard invited presidential interpretations that strained the meaning of precedent. The APA facilitated uniform policymaking and left room for the adoption of substantive policy lenses that helped to streamline the incorporation of religious tenets across executive agencies and programs.
The executive establishment of religion entails the promotion of, or collaboration with, specific religious tenets or organizations across the administrative state. It began in earnest during the Reagan administration and is currently embedded throughout federal policies and programs in the form of faith-based initiatives and broad religious exemptions. Executive establishment is uniquely destabilizing to the body politic because it directly conflicts with the unifying purpose of the Establishment Clause by undermining political unity and fostering potential divisiveness on the basis of belief and ideology.
The first section of this Article outlines the structural and substantive limitations imposed on the President by both the U.S. Constitution and the APA. The second section details the evolution of executive establishment and explains how the confluence of shifting U.S. Supreme Court doctrine and the push for administrative uniformity created the perfect storm that led to the incorporation of particular religious tenets and organizations in federal policy and programs. The final section makes proposals for reform after examining the existing institutional safeguards, specifically executive forbearance, judicial review, and legislative oversight. A brief conclusion warns that the continued unchecked adoption of specific religious tenets and religiously motivated policies is inherently exclusionary and directly undermines the unifying spirit of the Establishment Clause
Joseph DiMento
No full textJoseph DiMento at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1005/thumbnail.jp
Austen Parrish
No full textAusten Parrish at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1002/thumbnail.jp
International Organizations as Constitution-Shapers: Lawful but Sometimes Illegitimate, and Often Futile
Full text linkThis article analyses widespread constitution-shaping activities by a range of international organizations at different places on the globe. The principles governing the processes and substance of constitution-making—as propagated by the international organisations—have remained similar since 1989: rule of law (or its elements and emanations), human rights, and democracy (or variants and family members such as inclusion, openness, participation, and the like), the so-called constitutionalist trinity. The modalities of constitution-shaping are pre-accession-incentives, conditionalities, indicators, and benchmarking.
The article raises a dual question: First, do we see, in the current era of anti-globalisation, populism, and charges of ostensible obsoleteness of liberalism, a change in the law and practice of the organizations? Have the international organizations in fact given up on the constitutionalist trinity and have they stopped offering assistance? My answer is that this does not (yet) seem to be the case. In other words, despite critique and pushbacks, the language and practice have not changed until the present day.
Second and normatively speaking, is the international organizations’ continued insistence on the constitutionalist trinity a good thing? Should not the traditional constitutional principles be substituted by new ones? Or, alternatively, should not the international organizations abstain from getting involved in the first place? The article examines the effectiveness, the lawfulness, and the legitimacy of international involvement. It concludes that the constitution-shaping activity by international organizations needs to pay much more attention to the implementation of constitutional law and its translation into more specific laws, regulations, and practices in the administration on the ground to be effective. It needs be wary of crossing the threshold to unlawful intervention to remain lawful. And it must absorb post-colonial concerns and needs to pursue a much deeper social agenda with a global ambition, to regain legitimacy. Thus revamped, international organisations’ constitution-shaping role could be re-invigorated. It would thus form one building block of transnational or global constitutionalism and contribute to transnational ordering
The Evolving Rule of Law with Chinese Characteristics and Its Impacts on the International Legal Order
Full text linkThe rule of law, an abstract concept heavily debated among legal scholars and social scientists, has in the past few decades acquired a nearly universal appeal, as democracies, autocracies, and oligarchies all claim to uphold it. The Chinese government, for instance, announced in 2012 a comprehensive plan to advance law-based governance in China and has since undertaken major legal reforms. Repeatedly, Xi and the leaders of the Chinese Communist Party (“CCP”) have pledged to build a “rule of law country.” But when the ruling elites of a one-party authoritarian state allege commitment to the rule of law, what do they really mean? How is it different from the Western concepts of the rule of law, especially the “thick” version of it, that has been closely tied to liberal democratic values? What are the key features of the “rule of law with Chinese characteristics”? And how will it impact the international legal order? Applying a transnational legal ordering framework, this Article attempts some answers. It proceeds in two sections. Section One traces the development of the Chinese legal system and the evolving rule of law debates in China. Unlike prior research on this topic, which has generally treated the sovereign state as the unit of analysis, this section highlights the power dynamics within the Chinese ruling elites and the influence of the international legal community as well as the global rule of law discourse. Section Two reverses the inquiry and explores how China might impact the international legal order. It contends that varying coalitions of Chinese actors populate the interfaces between China and international law across different issue areas and that China’s impacts on the international legal order vary as well. Both sections will also discuss how the ideological remnants have produced three common, entrenched perceptions of law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes, and how these perceptions have modified China’s interactions with international law
Releasing the Caged Bird: A Case for Twitter as a Common Carrier
Full text linkSocial media platforms have become influential in shaping public discourse. These digital platforms have established new modes of communication that enable individuals from different ethnic, political, and racial backgrounds to come together and discuss contentious issues in online public forums. Yet, as these platforms continue to grow, their unfettered control over online speech increases. Legal scholars and Supreme Court Justices have examined these platforms’ control over speech, putting forth various legal theories to combat censorial practices, but have not agreed upon a solution.
To provide a legal framework for legal scholars and courts to consider, this Note will look deeper into the issue of censorship on social media, adopting a focused lens. Specifically, it will explore the feasibility of imposing common carrier responsibilities on one of the leading social media platforms, Twitter. It will assess the functionalities of the platform and how these mechanisms contribute to the indiscriminate regulation of user speech. Additionally, it will historically examine the common carrier doctrine, scrutinizing alternative common carrier theories that arose from the doctrine while advocating, adopting, and applying Eugene Volokh’s compelled hosting doctrine to Twitter. This Note concludes by assessing privatized regulation through an analysis of Elon Musk’s acquisition of Twitter
03. What Would Chemerinsky Do?
No full textThe UCI Law Class of 2016 created a What Would Chemerinsky Do? shirt celebrating then Dean Erwin Chemerinsky.https://scholarship.law.uci.edu/uci_law_stories_images_chemerinsky/1007/thumbnail.jp
