Category Archives: TLR Vol. 95-4

Federalism and State Democracy

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Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends of federalism—responsiveness, respect for diversity, laboratories of democracy, variation to permit foot voting, and so forth—are premised not only on state governments having authority but also on the success of state democracy at reflecting local needs and wants. Second, it shows that proponents of greater federalism focus largely on questions of state authority rather than the quality of state democracy, leading to proposals and doctrines that frustrate federalism’s normative goals. Third, the Article sketches several new paths for proponents of federalism that aim at reform of state government and state elections rather than changes to federal policy. Lastly, the Article shows that research on second-order elections reveals the emptiness of several prominent theories about federalism, particularly work about the “political safeguards of federalism.”

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Kent Greenawalt, Defender of the Faith

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Koppelman reviews Kent Greenawalt’s book, Exemptions: Necessary, Justified, or Misguided?, which aims “to explore the complexity of many concerns about [religious] exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight.” Koppelman calls the book “deliberately unhelpful with respect to broader questions that weigh on the minds of many,” namely, “[w]hy is it fair, as a general matter, to single out religion for special treatment,” and “what general principles should or courts follow if they are going to devise exemptions on an ad hoc basis?” As a result, he calls the book “an important but incomplete defense of exemptions,” and his review thus offers “an account of the missing principles inferred from what Greenawalt does say.” Koppelman starts by examining Greenawalt’s specific arguments for exemptions, before taking up the question of whether it is fair to give religion special treatment, and concludes by considering the problem of how to determine substantial burdens on religion.

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A Civics Lesson

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Koski reviews Catherine J. Ross’s book, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, which argues that “ignorance about, indifference to, and disdain for the speech rights of students permeates society” and leads to “rampant constitutional violations that plague our schools.” Koski says the book is not only “a comprehensive and colorfully written treatment of the Court’s student speech jurisprudence, but it also reminds us that we must remain vigilant in our protection of free speech in the classroom and the courtroom.” He begins by summarizing the book and focusing on its contributions to First Amendment analysis, before probing Ross’s argument that “protection of all pure student speech, even that which is hurtful, insubordinate, and offensive, is essential to the school’s duty of modeling and transmitting the values of citizenship.” Koski generally assents to Ross’s arguments, but concludes in favor of adding “schoolwide practices aimed at creating a culture of positive behavior, tolerance, and respect through [schoolwide positive behavior intervention and supports, restorative practices], and social emotional learning.”

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Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause

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In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause reads that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Yet, few courts have paused to consider what the phrase “in the United States” means. This Note argues that, from an Originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framer’s intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty “in the United States,” not just the fifty states and the District of Columbia.

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The Limits of International Organization Immunity: An Argument for a Restrictive Theory of Immunity Under the IOIA

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This Note examines the current circuit split in the level of immunity afforded to international organizations under the International Organizations Immunities Act of 1945 (IOIA). Under the IOIA, designated international organizations may receive “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” However, the Third Circuit and D.C. Circuit disagree on whether the IOIA intended to incorporate subsequent changes in the law of foreign sovereign immunity. Accordingly, international organizations may be entitled to either the “virtually absolute immunity” afforded to foreign states in 1945 or the restrictive immunity afforded to foreign states today. This Note argues that the IOIA, properly read, does not provide international organizations with absolute immunity. Moreover, applying a theory of restrictive immunity under the IOIA would benefit international organizations through lower transaction costs, increased organizational accountability, and improved public perception. Finally, the Note provides a comparative analysis of the various approaches taken by Austria, Italy, and the United Kingdom regarding international organization immunity.

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Category Archives: TLR Vol. 95-4

Federalism and State Democracy

By | TLR Vol. 95-4 | No Comments

Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends of federalism—responsiveness, respect for diversity, laboratories of democracy, variation to permit foot voting, and so forth—are premised not only on state governments having authority but also on the success of state democracy at reflecting local needs and wants. Second, it shows that proponents of greater federalism focus largely on questions of state authority rather than the quality of state democracy, leading to proposals and doctrines that frustrate federalism’s normative goals. Third, the Article sketches several new paths for proponents of federalism that aim at reform of state government and state elections rather than changes to federal policy. Lastly, the Article shows that research on second-order elections reveals the emptiness of several prominent theories about federalism, particularly work about the “political safeguards of federalism.”

Read More

Kent Greenawalt, Defender of the Faith

By | TLR Vol. 95-4 | No Comments

Koppelman reviews Kent Greenawalt’s book, Exemptions: Necessary, Justified, or Misguided?, which aims “to explore the complexity of many concerns about [religious] exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight.” Koppelman calls the book “deliberately unhelpful with respect to broader questions that weigh on the minds of many,” namely, “[w]hy is it fair, as a general matter, to single out religion for special treatment,” and “what general principles should or courts follow if they are going to devise exemptions on an ad hoc basis?” As a result, he calls the book “an important but incomplete defense of exemptions,” and his review thus offers “an account of the missing principles inferred from what Greenawalt does say.” Koppelman starts by examining Greenawalt’s specific arguments for exemptions, before taking up the question of whether it is fair to give religion special treatment, and concludes by considering the problem of how to determine substantial burdens on religion.

Read More

A Civics Lesson

By | TLR Vol. 95-4 | No Comments

Koski reviews Catherine J. Ross’s book, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights, which argues that “ignorance about, indifference to, and disdain for the speech rights of students permeates society” and leads to “rampant constitutional violations that plague our schools.” Koski says the book is not only “a comprehensive and colorfully written treatment of the Court’s student speech jurisprudence, but it also reminds us that we must remain vigilant in our protection of free speech in the classroom and the courtroom.” He begins by summarizing the book and focusing on its contributions to First Amendment analysis, before probing Ross’s argument that “protection of all pure student speech, even that which is hurtful, insubordinate, and offensive, is essential to the school’s duty of modeling and transmitting the values of citizenship.” Koski generally assents to Ross’s arguments, but concludes in favor of adding “schoolwide practices aimed at creating a culture of positive behavior, tolerance, and respect through [schoolwide positive behavior intervention and supports, restorative practices], and social emotional learning.”

Read More

Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause

By | TLR Vol. 95-4 | No Comments

In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause reads that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Yet, few courts have paused to consider what the phrase “in the United States” means. This Note argues that, from an Originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framer’s intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty “in the United States,” not just the fifty states and the District of Columbia.

Read More

The Limits of International Organization Immunity: An Argument for a Restrictive Theory of Immunity Under the IOIA

By | TLR Vol. 95-4 | No Comments

This Note examines the current circuit split in the level of immunity afforded to international organizations under the International Organizations Immunities Act of 1945 (IOIA). Under the IOIA, designated international organizations may receive “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” However, the Third Circuit and D.C. Circuit disagree on whether the IOIA intended to incorporate subsequent changes in the law of foreign sovereign immunity. Accordingly, international organizations may be entitled to either the “virtually absolute immunity” afforded to foreign states in 1945 or the restrictive immunity afforded to foreign states today. This Note argues that the IOIA, properly read, does not provide international organizations with absolute immunity. Moreover, applying a theory of restrictive immunity under the IOIA would benefit international organizations through lower transaction costs, increased organizational accountability, and improved public perception. Finally, the Note provides a comparative analysis of the various approaches taken by Austria, Italy, and the United Kingdom regarding international organization immunity.

Read More