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The Presumptions of Classical Liberal Constitutionalism
Get PDFRichard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported justifications both as to the ends [it] chooses and the means [it] uses to achieve them.” Such a recalibration of constitutional scrutiny, Epstein predicts, would “exert[] a profound,” and highly salutary, “effect on the size of government.”
Readers who share Epstein’s normative commitments naturally will find his constitutional vision compelling. But The Classical Liberal Constitution is not merely preaching to the choir; it is also addressed to those of us—constitutional progressives and conservatives alike—who do not necessarily share the author’s definition of individual liberty, faith in unregulated markets, or enthusiasm for limited government. And this large and politically heterogeneous segment of Epstein’s audience will just as naturally greet his constitutional vision with suspicion that Epstein is, to paraphrase Justice Holmes, attempting to engraft upon the Constitution a political and economic theory to which a majority of the country does not subscribe.
Stop Asking Which Came First, the Jail or the Criminal - Start Reinvesting in Justice in Maryland
Get PDFThe numerous cries for reform of the United States criminal justice system in recent time are not without merit based on an examination of the prison population. Despite violent crime being at record low rates in the United States, the prison population has expanded tremendously. On the global stage, the United States is the leader in incarceration rates. The United States has more people incarcerated than any other country, including China, Russia, and India. Looking at a local level, Maryland is not immune to this trend. In Maryland, while violent crime is on the decline, the amount of time an offender spends in prison has increased by 23%, or nearly seven months. Unfortunately, this is not without racial implications. The increase in prison sentences, as well as the lower rates of parole release, has led to a disproportionate effect on black offenders. In 2014, black offenders in Maryland were sentenced to thirty-six months longer than white offenders while controlling for broad offense type and adult criminal history category.
Calls for reform abound. Too often the policy created to address such issue is the proverbial square peg being forced into a round hole. This has not been the case in Maryland and in many jurisdictions across the country. Rather the focus of such reform began in 2010 with an innovative pilot study in Justice Reinvestment. This was the foundation for what became the Justice Reinvestment Act in Maryland
Parallel State
Get PDFAlternatively glamorized and reviled, Rio de Janeiro’s shantytowns, known as “favelas,” have become a fixture of the city’s architecture and life. It is estimated that about a million and a half people reside in these informal settlements that are scattered in the center and outskirts of Brazil’s second-largest metropolitan area. Operating in the shadow of the law and lacking formal ownership title, favela residents have constructed an intricate set of informal rules to buy, sell, rent, and bequeathe property that is often administered by the residents’ associations of individual neighborhoods, which also assist in mediating related conflicts. While largely untested legal mechanisms may now exist in some favelas to obtain title, obstacles such as the cost to do so as well as ignorance of the legal system — combined with a relative reliance on the current informal scheme of acquisition and dispute resolution — stand in the way of residents’ achieving formal ownership. This Article argues that while the informal framework has proved fairly efficient at managing everyday life in the favelas, the large-scale removals that the government has implemented in Rio de Janeiro in preparation for the 2014 FIFA World Cup and 2016 Olympic Games have upset the balance. Due in part to individuals’ lack of legal title, the government has been able to apply a high degree of discretion over the conditions under which it has exercised its eminent domain power, including when it came to deciding which abodes would be taken, what level of compensation people should receive, and how favela residents would be relocated. This Article shows how even robust extralegal frameworks can lull people into a false sense of security about their rights, which governments may exploit to dispossess the poor and vulnerable when it is politically desirable to do so. This should serve as a renewed call to simplify the titling process for individuals and interrogate the forces that oppose it
Baltimore City Risks Violation of Due Process Clause with Water Shut-Offs and Home Foreclosures
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About Law, Economics and Argumentation: The forgotten case of labor concerns in Brazilian competition Policy and Why it still matters
Get PDFA Funny Thing Happened On My Way To The Border . . . How the Recent Immigration Executive Orders and Subsequent Lawsuits Demonstrate the Immediate Need for Comprehensive Immigration Reform
Get PDFTemporary and Proposed Section 752 Regulations: Progress or Regress?
Get PDFIn October, 2016, the Internal Revenue Service issued temporary and proposed regulations under Internal Revenue Code Sections 752 and 704 (“the 2016 Regulations”). The author reviews and analyzes these regulations, and concludes that the 2016 Regulations properly deny economic risk of loss for unduly remote bottom dollar guarantees. He also concludes, however, that the IRS exceeded its regulatory authority when it also denied economic risk of loss on bottom-dollar guarantees where the risk to the guarantor was not remote. In addition, he observes that the 2016 Regulations lead to an inappropriate disjuncture with Section 465 and create rules that are too vague for real-world application. He argues that, at a minimum, the 2016 Regulations should be brought into compliance with the IRS’s authority and be subject to a de minimis rule. But his primary recommendation is that the 2016 Regulations be withdrawn and replaced with anti-abuse rules
