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Democracy\u27s Other Boundary Problem: The Law of Disqualification
Get PDFAlmost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer both a positive account of the function that disqualification plays in constitutional ordering and a normative account of the role that it should play. Drawing on domestic and comparative evidence, we develop the blueprint for an optimal disqualification regime. This regime would disqualify officials who pose a clear threat to a relatively minimalist, electorally focused conception of democracy, while avoiding overuse for less pressing ends or, worse, abuse for antidemocratic purposes. It would contain multiple pathways that would be calibrated to avoid the possibility of partisan arbitrage. These pathways would generally regulate individuals as such rather than groups and parties. Usually, they would not run directly through elected bodies. The substantive prerequisite for disqualification would more often be stated as a rule than as a standard, and the ensuing prohibitions would more often be temporary than permanent. This optimal approach leads to specific reform recommendations for the United States. First, we demonstrate that Section 3 of the Fourteenth Amendment should be given greater specificity and shape via statute, just as Congress did after the Civil War and as it is empowered to do now via its authority to enforce the terms of the Reconstruction Amendments. Second, we develop a case for a framework statute setting forth a judicial mechanism for enforcing the two-term limit on chief executives under the Twenty-Second Amendment. Finally, we propose a decoupling of impeachment from disqualification, creating two distinct institutional pathways for disqualification
Implied Organizations and Technological Governance
Get PDFCommon law historically adapted creatively and gracefully to the emergence of new types of organizations. Today, statutory forms of organizations predominate. But statutory organizational forms may be ill-suited to govern the novel, loosely coupled, and rapidly changing organizations that can arise through distributed technological mechanisms. This Article suggests that the common law of implied organizations can be a fertile ground for legal responses to technological organizations and indeed may be important not just for regulating such organizations but for giving them important legal capabilities
FSU Law Focus - 12/08/2023
Get PDFFrom the Dean: Ambassador David Scheffer at 2024 D\u27Alemberte & Palmer Lecture in Human Rights; New Judicial Network for Alumni; Alum Profile: Jeanne N. Curtin (\u2701); Student Profile: 3L Abby Merrillhttps://ir.law.fsu.edu/fsu-law-focus/1006/thumbnail.jp
FSU Law Focus - 08/14/2023
Get PDFFrom the Dean: Celebrating Summer 2023 Graduates; Incoming 1Ls Gather Around Florida; In Memoriam: Alum Hon. James C. Hankinson (’79); Student Profile: 3L Chase Joneshttps://ir.law.fsu.edu/fsu-law-focus/1078/thumbnail.jp
FSU Law Focus - 09/22/2023
Get PDFFrom the Dean: Institute of Law, Technology & Innovation\u27s Frontiers in Law and Technology series, Generative AI for Lawyers: An Introduction; Fall 2023 Fundathon Begins Monday; Alum Profile: Hon. Megan S. Silver (’15); Student Profile: 3L Cristen Chandlerhttps://ir.law.fsu.edu/fsu-law-focus/1115/thumbnail.jp
FSU Law Focus - 05/05/2023
Get PDFFrom the Dean: Spring 2023 Semester reflection; Academic Programs Office Creates New Academic Support Fellows Program; Alum Profile: Ralph A. Demeo (\u2785); Student Profile: 3L Mark Allen A.J.: Smart, Jr.https://ir.law.fsu.edu/fsu-law-focus/1139/thumbnail.jp
FSU Law Focus - 06/02/2023
Get PDFFrom the Dean: New Faculty members; Faculty Profile: Alexander Tsesis; Alum Profile: Laura M. Dennis (’11); Profile: Celebrating 2023 Grad Sarah Reynoldshttps://ir.law.fsu.edu/fsu-law-focus/1148/thumbnail.jp
FSU Law Focus - 08/01/2023
Get PDFFrom the Dean: FSU Law graduates selected for Immigrant Justice Corp 2023 class of Justice Fellows; Students Gain Valuable Experience Through Summer Externships; Alum Profile: Markenzy Lapointe (\u2799); Profile: Celebrating 2023 Grad Ashley Ceverehttps://ir.law.fsu.edu/fsu-law-focus/1204/thumbnail.jp
FSU Law Focus - 03/31/2023
Get PDFFrom the Dean: Honorable Kathryn Kimball Mizelle visits as Jurist in Reisdence; Call for Public Service Award Nominations; Alum Michael B. Dobson (’16); Student Profile: 3L Brandon Elyakimhttps://ir.law.fsu.edu/fsu-law-focus/1226/thumbnail.jp