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Is There Anything Left in the Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions and the “Independent State Legislature Theory”
Get PDFPartisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature Theory.” The ISLT, at a minimum, would allow federal review of state interpretations of state law governing congressional elections, including redistricting. Part I distills the Supreme Court’s opinions on redistricting commissions into two potential doctrinal routes: a more restrained version (ISLT-Lite) and a maximalist version (ISLT-Max). Part II proposes a framework to analyze existing congressional redistricting commissions for their constitutionality under each theory. Part III makes recommendations for building constitutionally sound congressional redistricting commissions under each theory, both for states with existing commissions and for those looking to reduce partisan gerrymandering in the future. While the future of ISLT, and congressional redistricting commissions more broadly, remains uncertain, this Note offers an analytical framework so states may continue to constitutionally alleviate partisan gerrymandering through the congressional redistricting commission framework
Front Matter
Get PDFFront Matter for Volume 13, Issue 1 of Michigan Journal of Environmental & Administrative La
Catch and Release Jurisdiction
Get PDFIn Catch and Kill Jurisdiction, Professor Zachary Clopton sheds light on an increasingly common phenomenon in which federal courts are expanding the power of the federal judiciary in a way that frustrates the enforcement of substantive rights. Federal courts expansively interpret their jurisdiction to reach cases that arguably belong in state court, then apply federal procedural doctrines to dismiss the cases on non-merits grounds. First catch, then kill. Clopton argues we find catch and kills when the federal court system is not overly burdened and in areas where federal judges are “hostile” to a class of claims or litigants. Catch and kills also incentivize more catch and kills. When a federal court endorses these tactics, it legitimizes the dubious readings of federal jurisdiction that support them. This encourages defendants to argue for more expansive readings of jurisdiction or make similar arguments in other courts. As more cases flow into federal courts that are of a kind that federal judges oppose, these judges will expand or sharpen the catch and kill trap
Pricing Solar Development Options
Get PDFSince the 1980s, each decade has been warmer than the last. The nine years from 2014 through 2022 were the nine warmest years on record. The results of these temperature trends are familiar at this point: Ice sheets are shrinking. Glaciers are retreating at an increasing rate. Sea levels are rising. Ocean acidification is intensifying. As climate change progresses, the Earth will experience worse flooding, harsher droughts, and more severe hurricanes. Yet, there is still time to mitigate the worst impacts of climate change— time to repair the roof
Article 3
Get PDFArticle 3 is located in Part I of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as one of the provisions that describe States parties\u27 general obligations under the Convention. Read in conjunction with Articles 1, 2, 4, 5, and 24, it forms part of the overarching interpretative framework for the application of the specific obligations set out in Articles 6-16. Article 24 in Part VI is somewhat repetitive of Article 3. The obligations and concepts introduced in these initial articles apply to all other articles in the Convention. The Committee has, on occasion, viewed Article 3 as \u27catching\u27 matters that fall outside the express terms of other articles. However, as it often refers to Article 3 alongside other articles, notably Article 2, it is not clear how the Committee sees the articles separately or the extent to which it is desirable to do so
Proposal for a New Regulation of Speculation in Sovereign Debt
Get PDFOver the past few years, several countries have undertaken to regulate the speculation in sovereign debt pursued by so-called “vulture funds.” The various realizations and attempts present a series of loopholes that make a new regulation of this speculation advisable. A proposal for a new regulation, legally justified and precisely framed, is all the more desirable given that some legislators, in particular from the New York State Legislature, have recently taken up the issue of speculation.Debt sustainability is the only realistic regulation benchmark. It is inconceivable to ban debt purchases on the secondary market as this would significantly impact the liquidity of sovereign debt and the cost of the borrowed money. Nevertheless, sovereign debt speculation is unacceptable if it undermines the human rights of the populations of the debtor countries. Therefore, some limitations should be set. Every endeavor undertaken by a creditor to get paid should be endorsed by a court informed about the terms of the debt. The claims of speculative funds should be capped at the amount paid to acquire the debt instruments. Besides this amount, the creditor should be able to obtain interest on his investment. This interest offsets the risk that the creditor may not recoup the money
The National Security Consequences of the Major Questions Doctrine
Get PDFThe rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.
In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national- security-related conflicts—wars of territorial conquest, terrorism, or nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.
The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between “foreign” and “domestic,” with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges—particularly lower court judges—will be put in the position of second-guessing executive branch decisionmaking on precisely those questions—economic foreign policy questions of deep economic and political significance—on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system
Title VII’s Failures: A History of Overlooked Indifference
Get PDFNearly sixty years after the adoption of Title VII and over thirty since intersectionality theory was brought into legal discourse by Professor Kimberlé Crenshaw, the U.S. Supreme Court has consistently failed to meaningfully implement intersectionality into its decisionmaking. While there is certainly no shortage of scholarship on intersectionality and the Court’s failure to recognize it, this remains an overlooked failure by the Supreme Court. This Note proceeds in three parts. Part I provides an overview of Title VII and intersectional discrimination theory. I then explain how the EEOC and the Supreme Court have historically handled intersectional discrimination cases. Part II compares and contrasts some of the most influential feminist, political, and legal theories on sex discrimination with intersectionality. Though these theories might seem incompatible, I then offer a brief discussion of how they can be understood in concert. I also explain how the Court can improve its Title VII decisionmaking. Part III provides a framework for courts, plaintiffs, and defendants in Title VII discrimination cases to incorporate intersectional theory and, most importantly, to recognize the unique harms experienced by plaintiffs bringing Title VII claims
Measuring Corruption as a Threat to International Security: An Emerging Indicator for Enhancement of Global Corruption Governance
Get PDFThe conceptual changes to international security after the end of the Cold War, and particularly those following the al-Qaeda attacks of 2001, clarified the symbiotic relationship between corruption and international security: Corruption destroys the social political environment required to create human security and to ensure safety from terrorist attacks, and national borders increasingly fail to restrain its negative consequences.
To achieve human security though policy intervention in domestic affairs, global corruption governance relies on numerical indicators that measure corruption. By evaluating states through public comparison, indicators pressure states to improve their domestic institutions and structures to align them with the international legal regime against corruption. However, existing indicators, including the Corruption Perceptions Index and Control of Corruption, have serious deficiencies that precipitate strong criticism from scholars and practitioners.
This article suggests that the objective numerical measurement of “Corruption (0703),” one of the statistical measurements under the International Classification of Crime for Statistical Purposes (ICCS) of United Nations Office on Drugs and Crime (UNODC), is an emerging indicator that can enhance global corruption governance by supplementing or substituting existing indicators which are subjective numerical measurement of corruption. The significance of corruption as a threat to international security, not simply to international business, thus increases the absolute gains of Corruption (0703). Therefore, it is vital that states utilize and comply with Corruption (0703).
For this recommendation to be persuasive, however, the following three questions must be answered. Does Corruption (0703) have the qualities necessary to exert pressure on states by negatively impacting their power in a way that existing indicators cannot? Can states, which are both the subjects and objects of the Corruption (0703) measurement, realistically comply with it, and will they do so? How can the problem of state cheating to achieve a more favorable score be overcome?
To answer these questions, this article contemplates distinct characteristics of corruption between domestic criminal law and international agreements, and ultimately adopts the approach of neo-liberals, who prioritize absolute gain over relative gain and are thus optimistic about the potential for international organization and cooperation in implementing and enforcing this metric. In addition, this article often refers to the Republic of Korea as a case study because it has reached the most advanced stage of ICCS implementation
