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Elizabeth Bowen and Nicole Capozziello, A Human Rights Perspective on Homelessness and COVID-19
Get PDFIn the early days of the COVID-19 pandemic, experts warned of the unique and devastating havoc that the novel illness could wreak on people experiencing homelessness, an already vulnerable population. While reports thus far suggest that neither the prevalence nor mortality of COVID-19 among people who are homeless has been as severe as feared, the pandemic has brought about opportunities to enact innovative and long overdue approaches to the issue of homelessness. Though there are compelling public health reasons for providing housing assistance and related services, we believe that there is more enduring value in reframing homelessness from a human rights perspective, ensuring housing to every American during the pandemic and beyond
Amanda Hughett discusses the history of prisoner labor unions
Get PDFEpisode 4 of the podcast features Amanda Hughett discussing the history of prisoner labor unions. The work examines how efforts to litigate around prison conditions in the 1970s unintentionally cut against imprisoned people’s efforts to mobilize at the grassroots level
Erkin Özay discusses his new book, Urban Renewal and School Reform in Baltimore: Rethinking the 21st Century Public School
Get PDFEpisode 11 features Erkin Özay, assistant professor of Architecture at the University at Buffalo, School of Architecture and Planning. Özay discusses his new book “Urban Renewal and School Reform in Baltimore: Rethinking the 21st Century Public School” (Routledge 2021), and his holistic approach to the relationships among urban development, urban design, and schools
Court-Packing Time? Supreme Court Legitimacy and Positivity Theory
Get PDFMany progressives have decided they need to change the Supreme Court to break the conservative justices’ lock on judicial power. Yet those same progressives disagree about the best way to change the Court. This Essay begins by comparing straight-forward court-packing—adding justices to shift the partisan balance on the Court—to other possible Court changes, such as court-curbing measures that would reduce the Court’s power. Court-packing has multiple advantages over these other possibilities, not the least of which is that even the current Roberts Court would almost certainly hold court-packing, unlike other potential changes, to be constitutional. Even so, some progressives view courtpacking as the most extreme or radical option. They fear that court-packing would undermine the Court’s sociological legitimacy: public approval and acceptance of the Court’s authority and decisions. This Essay therefore delves deeply into a burgeoning area of political science literature on the Court’s legitimacy: Positivity theory states that the American people embrace the Court with a favorable bias of good will. From this perspective, diffuse support for the Court as an institution is resilient, even when support for specific Court actions wavers. A handful of legal scholars have touched on the recent research in this area, but given our current political moment and recent Court developments, a more comprehensive exploration of this complicated literature seems necessary, particularly as it bears on the possibility of court-packing. Ultimately, this research suggests that court-packing is unlikely to weaken the American people’s support for the Court as a judicial institution
Does the FTC Have Blood On Its Hands? An Analysis of FTC Overreach and Abuse of Power After \u3cem\u3eLiu\u3c/em\u3e
Get PDFRecent cases have called the Federal Trade Commission’s (“FTC”) enforcement methods into question. After a circuit split developed in the wake of the Seventh Circuit’s decision in Federal Trade Commission v. Credit Bureau Center, L.L.C., the Supreme Court responded by granting certiorari and consolidating the case with AMG Capital Management, L.L.C. v. Federal Trade Commission. The issue in these cases is whether Section 13(b) of the FTC Act authorizes the FTC to bypass the due process safeguards mandated by Congress in Sections 5 and 19 of the FTC Act and, in doing so, to conduct warrantless searches and seizures, unilaterally freeze assets, and impose punitive “disgorgement” monetary damages. In light of the Supreme Court’s recent decision in Securities & Exchange Commission v. Liu, it seems likely that the Court will limit the FTC’s abusive use of Section 13(b) and find in favor of the defendants in these cases.
The FTC’s mission is to protect consumers from unfair or deceptive acts or practices, and for many years, one of its main enforcement methods has been disgorgement under Section 13(b) of the FTC Act. Section 13(b) gives the FTC the authority to seek preliminary and permanent injunctions when it believes that the law is being violated or is about to be violated. It does not mention disgorgement or any other restitution methods, but the FTC has spent considerable time and energy building a foundation of favorable case law to support its ability to use disgorgement. Its strategy consisted of building a body of precedent, based on old and inapplicable cases, and it has aggressively pursued this strategy with the intention of expanding its enforcement abilities. The way it has used its self-created power has caused untold damage to business owners, employees, and consumers.
This Article argues that the Supreme Court should rule against the FTC in Credit Bureau Center/AMG Capital Management. The FTC used shaky and extraneous case law to expand its power to include the ability to seek disgorgement, and it has caused irreparable harm to businesses and individuals across the country. Indeed, following the FTC’s use of disgorgement as an improper remedy to seek damages, several business owners who were subjected to that improper treatment committed suicide, making the FTC a de facto judge, jury, and executioner. Part I details the methods that the FTC has used over the past few decades to expand its power to its current level. Part II argues that disgorgement is not authorized by Congress under Section 13(b). Indeed, nothing other than a preliminary or permanent injunction is authorized by Congress under Section 13(b). And Part III addresses the numerous constitutional issues that arise when a federal agency expands its power far beyond its statutory grant of power
The Constitutional Convention and Constitutional Change: A Revisionist History
Get PDFHow do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.
What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actu-ally use them to change the Federal Constitution? Are we to conclude that most of the amendments are in some way defective?
To show why Article V might have permitted the use of legislatures to amend the Constitution, this Article examines a series of political texts on the conven-tion written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law.
This perspective helps to explain the rightful place of constitutional change by government. The people can be represented by the institutions of government, and when they are, those institutions can claim an authority to alter the Con-stitution. In this sense, the popular sovereignty described in McCulloch is dy-namic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the Con-stitution to better secure their property and liberty.
The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal acad-emy for nearly 50 years. It focuses on the same key state—Pennsylvania—and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The Article emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change
