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  • Author: Luke C. Sheahan
  • Publication Date: 12-2019
  • Content Type: Journal Article
  • Journal: Humanitas
  • Institution: The Center for the Study of Statesmanship, Catholic University
  • Abstract: Traditionalist conservatives have often expressed hostility to the Supreme Court’s First Amendment jurisprudence, perceiving it as an attempt to accomplish social change undertaken by the court’s current justices while disregarding the original meaning of the Bill of Rights.1 According to this account, rather than recognizing the provisions of the First Amendment to be part of a larger constitutional project that upholds social order and traditional institutions, the court interprets First Amendment clauses so as to undermine the basic structural logic of the Constitution itself. An advocate of this position is the figure many consider to be the godfather of American intellectual conservatism, Russell Kirk.
  • Topic: Law, Domestic politics, Conservatism
  • Political Geography: United States
  • Publication Date: 12-2019
  • Content Type: Journal Article
  • Journal: Humanitas
  • Institution: The Center for the Study of Statesmanship, Catholic University
  • Abstract: By any conventional measure, Chief Justice John Marshall’s Life of George Washington (1804) was a flop. Intended to be the authoritative biography of the nation’s most celebrated general and president, the work was widely derided at the time of its overdue publication, and since then has been largely forgotten. Surely the sense of personal embarrassment Marshall experienced must have been keen, for he admired no public figure more than Washington. Amid his Supreme Court duties, he labored for years on the Life, digging deep into American military and political history in hopes of etching in the minds of his fellow citizens the memory of the republic’s foremost founder. Yet in spite of his efforts, on no other occasion were Marshall’s failures more total and public. At one point, Marshall expressed the desire to publish the work anonymously, and one wonders if his wish was motivated less by self-effacement than a faint premonition of the biography’s failure.
  • Topic: Law, Military Affairs, Domestic politics, Supreme Court
  • Political Geography: United States
  • Author: Catherine Ruetschli, Mark Glick
  • Publication Date: 10-2019
  • Content Type: Working Paper
  • Institution: Institute for New Economic Thinking (INET)
  • Abstract: The Big Tech companies, including Google, Facebook, Amazon, Microsoft and Apple, have individually and collectively engaged in an unprecedented number of acquisitions.When a dominant firm purchases a start-up that could be a future entrant and thereby increase competitive rivalry, it raises a potential competition issue. Unfortunately, the antitrust law of potential competition mergers is ill-equipped to address tech mergers. We contend that the Chicago School’s assumptions and policy prescriptions hobbled antitrust law and policy on potential competition mergers. We illustrate this problem with the example of Facebook. Facebook has engaged in 90 completed acquisitions in its short history (documented in the Appendix to this paper). Many antitrust commentators have focused on the Instagram and WhatsApp acquisitions as cases of mergers that have reduced potential competition. We show the impotence of the potential competition doctrine applied to these two acquisitions. We suggest that the remedy for Chicago School damage to the potential competition doctrine is a return to an empirically tractable structural approach to potential competition mergers.
  • Topic: Economics, Science and Technology, Communications, Law, Digital Economy, Macroeconomics, Monopoly, Antitrust Law
  • Political Geography: United States
  • Author: Mark Glick
  • Publication Date: 07-2019
  • Content Type: Working Paper
  • Institution: Institute for New Economic Thinking (INET)
  • Abstract: Since the publication of Robert Bork’s The Antitrust Paradox, lawyers, judges, and many economists have defended “Consumer welfare” (CW) as a standard for decisions about antitrust goals and enforcement priorities. This paper argues that the CW is actually an empty concept and is an inappropriate goal for antitrust. Welfare economists concede that there is no credible measurable link between price and output and human well-being. This means that the concept of CW does not legitimate limited antitrust enforcement, nor does it justify the exclusion of other antitrust goals that require more active enforcement practices. This paper contends that antitrust policy is not welfare based at all, and that if it were, antitrust policy and enforcement would differ significantly from the Chicago School vision. Without the fiction that economists can establish that in the short run lower price and higher output measurably increases welfare more than other goals, recent defenses of the CW standard resolve down to arguments based on unsupported assumptions.
  • Topic: Economics, Law, Legal Theory , Economic Theory, Macroeconomics, Antitrust Law, Microeconomics
  • Political Geography: United States
  • Author: Ethan Kaplan
  • Publication Date: 01-2019
  • Content Type: Policy Brief
  • Institution: Economics for Inclusive Prosperity (EfIP)
  • Abstract: In sum, political institutions in the United States favor higher income individuals over lower income individuals and ethnic majorities over ethnic minorities. This is accomplished through a myriad of policies which impact who votes, allow for differential influence and access by the wealthy, structure voting districts to dilute the impacts of under-represented voters, and allow for oversized influence of pro-business owner ideas through media and membership organizations.
  • Topic: Economics, Law, Elections, Democracy, Economic Policy, Voting
  • Political Geography: United States
  • Author: Karina Santellano
  • Publication Date: 06-2019
  • Content Type: Journal Article
  • Journal: California Journal of Politics and Policy
  • Institution: Institute of Governmental Studies, UC Berkeley
  • Abstract: Law pertaining to immigrants is conceptualized as legal violence (Menjívar and Abrego 2012). Deferred Action for Childhood Arrivals (DACA) is an executive policy with an uncertain future under the Trump administration. In California, many DACA beneficiaries are students at public colleges and universities. This paper conceptualizes DACA as another form of legal violence and draws from 30 in-depth interviews with undocumented students to explore the ways in which undocumented students believe the role of their college/university is to mitigate the legal violence stemming from the liminality of DACA. Some participants believe their colleges/universities should provide safety, specifically via the designation of sanctuary campus status for its symbolic importance, others believe their colleges have a responsibility beyond intellectualism sharing they should be progressive leaders against xenophobia, while others expressed cynicism, describing institutions of higher education as corporations interested in their brand rather than in being immigrant rights advocates on behalf of their students. This study serves as a way for institutions of higher education to learn how undocumented students perceive their roles and duties. At the end of this paper, the author suggests how colleges and universities can work towards mitigating legal violence in the lives of undocumented students.
  • Topic: Human Rights, Immigration, Law, Immigrants, Higher Education
  • Political Geography: United States, California
  • Publication Date: 06-2019
  • Content Type: Journal Article
  • Journal: California Journal of Politics and Policy
  • Institution: Institute of Governmental Studies, UC Berkeley
  • Abstract: In June 2012, President Barack Obama announced the creation of DACA, a program which instructed executive branch officials to exercise their administrative discretion to defer the deportation of eligible applicants. Two years later, in November 2014, President Obama announced the DAPA program, which expanded DACA and extended this exercise of discretion to parents of U.S. citizens or permanent residents. Both announcements were met by controversy. Critics charged that, by altering the legal regime from one in which undocumented immigrants were to be deported to one of “executive amnesty,” President Obama exceeded his authority, turning him into an “emperor” or a “king.” The President’s supporters insisted, rather, that President Obama was acting fully within his executive authority. Understanding this debate requires one both to delve into the complicated legal context, and to look beyond legal doctrine. The controversy reflected broader concerns about discretionary executive power and the law, linked to anxiety regarding the sovereign’s head of state as “he who decides on the state of exception.” It also derived from specific concerns about President Obama as the embodiment of the sovereign: his racialized body, depicted as illegitimate and foreign, furthered the perception of his policies as illegal. Lastly, the fact that undocumented immigrants are not perceived as members of the body politic helped to produce this vision of DACA and DAPA as lawless action. In this telling, the sovereign actor, the beneficiaries of his action, and the act itself were all cast as illegitimate through a mutually reinforcing logic; all were exceptions that stood “outside the law.”
  • Topic: Race, Immigration, Law, Citizenship, Immigrants
  • Political Geography: United States, California
  • Author: Maryellen Fullerton
  • Publication Date: 02-2015
  • Content Type: Journal Article
  • Journal: Journal on Migration and Human Security
  • Institution: Center for Migration Studies of New York
  • Abstract: More than ten million people are stateless today. In a world of nation states, they live on the margins without membership in any state, and, as a consequence, have few enforceable legal rights. Stateless individuals face gaps in protection and in many cases experience persecution that falls within the refugee paradigm. However, US asylum policy does not adequately address the myriad legal problems that confront the stateless, who have been largely invisible in the jurisprudence and academic literature. Two federal appellate court opinions shed new light on the intersection of statelessness and refugee law in the United States. In 2010, Haile v. Holder examined the asylum claim of a young man rendered stateless when the Ethiopian government issued a decree denationalizing ethnic Eritreans. In a 2011 case, Stserba v. Holder, the court reviewed an asylum claim by a woman who became stateless when the Soviet Union collapsed, and the successor state of Estonia enacted citizenship legislation that included a language requirement. This article analyzes the opinions which suggest that state action depriving residents of citizenship on ethnic and other protected grounds warrants a presumption of persecution. This article also identifies additional circumstances in which stateless individuals may have a well-founded fear of persecution that qualifies them for asylum in the United States. In addition, this article notes that although far too many stateless individuals face persecution, not all of them do. Stateless persons who do not fear persecution, however, are also vulnerable. The absence of state protection condemns them to a precarious existence and their inability to obtain passports or other travel documents often prevents their return to states where they formerly resided. The refusal of most states to admit non-citizens frequently keeps stateless persons in limbo. Stateless individuals stranded in the United States live under a supervisory patchwork that serves neither their interests nor those of the United States. Rather than relying on incremental case law developments and inapposite regulatory schemes, the US State Department and the Department of Homeland Security should convene a task force to report on the size and composition of the stateless population in the United States and the need to develop legislative, regulatory, and other policy guidance concerning statelessness claims.
  • Topic: Law
  • Political Geography: United States
  • Author: Jeffrey Miron
  • Publication Date: 10-2014
  • Content Type: Working Paper
  • Institution: The Cato Institute
  • Abstract: In November 2012, voters in the states of Colorado and Washington approved ballot initiatives that legalized marijuana for recreational purposes. Alaska, Oregon, and the District of Columbia are scheduled to consider similar measures in the fall of 2014, and other states may follow suit in the fall of 2016.
  • Topic: War on Drugs, Social Movement, Law
  • Political Geography: United States, Washington, Colombia
  • Publication Date: 04-2014
  • Content Type: Journal Article
  • Journal: Americas Quarterly
  • Institution: Council of the Americas
  • Abstract: Politics Innovator: María Rachid, Argentina María Rachid never wanted to become a politician. But she is responsible for some of the most important human rights bills in Argentina's recent history, including the 2010 Marriage Equality Law, which legalized same-sex marriage, and the 2012 Gender Identity Law, which allows transgender people to change gender identity on official documents without prior approval. The 38-year-old has served in the Buenos Aires city legislature since 2011 for the governing Frente Para La Victoria (Front for Victory) coalition. A former vice president of Argentina's Instituto Nacional contra la Discriminación, la Xenofobia y el Racismo (National Institute Against Discrimination, Xenophobia and Racism—INADI), Rachid is a long time social activist who didn't always see party politics as the best way to accomplish change. “I never thought I would become a legislator,” she says, though she adds that she was always interested in politics “as a tool to construct a more just society.” Born and raised in Buenos Aires province, Rachid came out as a lesbian as an adult—around the same time that she came of age as a political activist, having left her law studies at the University of Belgrano to focus on a new career as an activist for women's rights and sexual liberation.
  • Topic: Government, Politics, Law
  • Political Geography: United States, Argentina, Colombia, Cuba