This Article offers a new approach to understanding, classifying, and assessing cases of presidential disability. In constitutional terms, “presidential disability” refers to any condition that renders the President of the United States “unable to discharge the powers and duties” of the office. Remarkably, the existing legal infrastructure under the Twenty-Fifth Amendment provides no guidance for determining when a President has become constitutionally disabled. Nor does it explain when the President (under Section 3) should initiate the succession process, and when the Vice President and other senior officials (under Section 4) should take the lead instead. During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.
{"title":"Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment","authors":"Daniel J. T. Schuker","doi":"10.2139/ssrn.2518554","DOIUrl":"https://doi.org/10.2139/ssrn.2518554","url":null,"abstract":"This Article offers a new approach to understanding, classifying, and assessing cases of presidential disability. In constitutional terms, “presidential disability” refers to any condition that renders the President of the United States “unable to discharge the powers and duties” of the office. Remarkably, the existing legal infrastructure under the Twenty-Fifth Amendment provides no guidance for determining when a President has become constitutionally disabled. Nor does it explain when the President (under Section 3) should initiate the succession process, and when the Vice President and other senior officials (under Section 4) should take the lead instead. During crises of presidential disability, administrations have felt obliged to devise ad hoc solutions. The framework developed here poses three basic questions to formulate a legal diagnosis of a President’s condition: How severe is the disability? When is the disability expected to end? Where is the disability located? The new framework indicates, based on a given diagnosis, who — either the President or the Vice President with other designated officials — would be best positioned to determine whether to invoke the Twenty-Fifth Amendment. This systematic approach, grounded in historical experience, should mitigate the uncertainties of what has so often proved a politically charged and disorderly process.","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86343023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
American federalism contemplates that states will retain a significant degree of autonomy so that state power can serve as a meaningful counterweight to national power. It is often said that states exercise this function through extraconstitutional processes centered on the political party system. That is, states influence the content of national law and protect themselves from undesirable exercises of national power by using the mechanisms of internal party processes. If this process is to work properly, however, states must retain considerable political autonomy, for the possibility of state objection to exercises of national power is merely theoretical if state political processes are not sufficiently independent of their national counterparts to enable the state to adopt and assert ends or interests different from those asserted by the national government. The evidence, however, suggests strongly that the growth of national political parties during and since the early nineteenth century created a two-way street. Parties not only offered states a way to influence national politics, but also created a reverse pathway by which national politics could influence, and in many cases overawe, any independent state-level politics. As a result, the same extraconstitutional pathways that provided states a means to protect themselves from national domination simultaneously eroded the political autonomy necessary for states to maintain the kind of independent wills contemplated by the federal arrangement. This does not mean that states lack entirely the capacity to stand up to the federal government, but it does mean that their ability to do so is limited, not necessarily for lack of power but for lack of autonomous control over their political agendas and positions. This in turn suggests a much chastened conception of what it might mean for a subnational government to have the ability to “check” national power.
{"title":"The Myth of State Autonomy: Federalism, Political Parties, and the National Colonization of State Politics","authors":"James A. Gardner","doi":"10.2139/SSRN.2191150","DOIUrl":"https://doi.org/10.2139/SSRN.2191150","url":null,"abstract":"American federalism contemplates that states will retain a significant degree of autonomy so that state power can serve as a meaningful counterweight to national power. It is often said that states exercise this function through extraconstitutional processes centered on the political party system. That is, states influence the content of national law and protect themselves from undesirable exercises of national power by using the mechanisms of internal party processes. If this process is to work properly, however, states must retain considerable political autonomy, for the possibility of state objection to exercises of national power is merely theoretical if state political processes are not sufficiently independent of their national counterparts to enable the state to adopt and assert ends or interests different from those asserted by the national government. The evidence, however, suggests strongly that the growth of national political parties during and since the early nineteenth century created a two-way street. Parties not only offered states a way to influence national politics, but also created a reverse pathway by which national politics could influence, and in many cases overawe, any independent state-level politics. As a result, the same extraconstitutional pathways that provided states a means to protect themselves from national domination simultaneously eroded the political autonomy necessary for states to maintain the kind of independent wills contemplated by the federal arrangement. This does not mean that states lack entirely the capacity to stand up to the federal government, but it does mean that their ability to do so is limited, not necessarily for lack of power but for lack of autonomous control over their political agendas and positions. This in turn suggests a much chastened conception of what it might mean for a subnational government to have the ability to “check” national power.","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"1 1","pages":"1-68"},"PeriodicalIF":0.0,"publicationDate":"2012-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90828853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Everywhere you look, campaign finance disclosure laws are under attack. Disclosure has been opposed by the National Organization for Marriage, Senate and House Republicans (including Senator McConnell, who used to call for no limits and full disclosure), Republican members of the Federal Election Commission, and the U.S. Chamber of Commerce. But attacks on disclosure have come not only from the right. Members of the academy, including Bill McGeveran, Richard Briffault, Lloyd Mayer, and Bruce Cain. have criticized disclosure laws. In this short Essay, I offer a qualified defense of government-mandated disclosure, one which recognizes the concerns of these prominent academics but also sees much of the anti-disclosure rhetoric of the Chamber and others as overblown and unsupported - offered disingenuously with the intention to create a fully deregulated campaign finance system in which large amounts of secret money flow in an attempt to curry favor with politicians but avoid public scrutiny. To the contrary, disclosure laws remain one of the few remaining constitutional levers to further the public interest through campaign finance law.Even in the Internet age, in which the costs of obtaining campaign finance data about small-scale contributions by individual donors often have fallen to near zero, there is virtually no record of harassment of donors outside the context of the most hot button social issue of gay marriage - and even there, much of the evidence is weak. In the face of evidence of a real threat of serious harassment, courts should freely grant exemptions from campaign finance laws. Even absent proof of harassment, Congress and state legislatures should modify their disclosure laws to protect the informational privacy of those individuals who use modest means to express symbolic support for candidates or ballot measures. But major players in the electoral process generally should not be able to shield their identities under a pretextual appeal to the prevention of “harassment” because of the important government interests in preventing corruption and providing valuable information to voters which are furthered by mandated disclosure. It is no surprise that the Internet has been primarily responsible for the loss of informational privacy in the campaign finance disclosure context. Perhaps more surprisingly, the Internet is at least indirectly responsible for strengthening the two primary government interests supporting mandatory disclosure. The rise of the Internet was a prime force in the unraveling of the older campaign finance regime, and the subsequent emergence of new campaign finance organizations such as “Super PACs” which raise the danger of the corruption of elected officials dramatically. Disclosure laws may not be the best tool to police the potential for corruption from these new or supercharged campaign finance vehicles. Nonetheless, disclosure laws are much better than nothing in ferreting out when an elected official might
放眼望去，到处都是竞选资金披露法受到攻击的地方。全国婚姻组织(National Organization for Marriage)、参众两院共和党人(包括参议员麦康奈尔，他曾呼吁不限制和全面披露)、联邦选举委员会(Federal Election Commission)的共和党成员和美国商会(U.S. Chamber of Commerce)都反对公开。但对信息披露的攻击并不仅仅来自右翼。学院成员包括比尔·麦克吉弗伦、理查德·布里法特、劳埃德·梅尔和布鲁斯·凯恩。批评信息披露法。在这篇短文中，我为政府强制披露提供了一个有资格的辩护，我承认这些著名学者的担忧，但也看到商会和其他人的许多反披露言论被夸大了，没有得到支持——他们不诚实地提出意图建立一个完全放松管制的竞选资金体系，在这个体系中，大量的秘密资金流动，试图迎合政客，但避免公众监督。相反，信息披露法仍然是为数不多的通过竞选财务法促进公共利益的宪法杠杆之一。即使在互联网时代，获取个人小额捐款的竞选财务数据的成本往往降至接近于零，但在同性恋婚姻这一最热门的社会问题背景下，几乎没有任何骚扰捐赠者的记录——即使在那里，许多证据也很薄弱。面对严重骚扰的真实威胁的证据，法院应该自由地给予豁免，不受竞选财务法的约束。即使没有骚扰的证据，国会和州立法机构也应该修改他们的信息披露法，以保护那些使用适度手段表达对候选人或投票措施象征性支持的个人的信息隐私。但是，选举过程中的主要参与者一般不应该以防止“骚扰”为借口来掩盖自己的身份，因为政府在防止腐败和向选民提供有价值的信息方面有着重要的利益，而强制性的信息公开进一步促进了这些利益。毫无疑问，在竞选资金披露的背景下，互联网对信息隐私的丧失负有主要责任。也许更令人惊讶的是，互联网至少间接地加强了政府支持强制披露的两大主要利益。互联网的兴起是瓦解旧的竞选资金制度的主要力量，随后出现了新的竞选资金组织，如“超级政治行动委员会”，这极大地提高了当选官员腐败的危险。信息披露法可能不是最好的工具，以监督这些新的或增压的竞选资金工具可能产生的腐败。尽管如此，在发现当选官员可能为其支持者谋私利而非为公众利益行事时，信息披露法总比什么都没有好。在信息兴趣方面，竞选财务数据，特别是在竞选广告中，提供了一个重要的启发式线索，帮助忙碌的选民决定如何投票。这些数据有助于选民面对互联网驱动的信息过载和各种可能具有误导性的竞选广告，这些广告试图掩盖竞选活动和竞选广告背后的身份。
{"title":"Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age","authors":"Richard L. Hasen","doi":"10.2139/SSRN.1948313","DOIUrl":"https://doi.org/10.2139/SSRN.1948313","url":null,"abstract":"Everywhere you look, campaign finance disclosure laws are under attack. Disclosure has been opposed by the National Organization for Marriage, Senate and House Republicans (including Senator McConnell, who used to call for no limits and full disclosure), Republican members of the Federal Election Commission, and the U.S. Chamber of Commerce. But attacks on disclosure have come not only from the right. Members of the academy, including Bill McGeveran, Richard Briffault, Lloyd Mayer, and Bruce Cain. have criticized disclosure laws. In this short Essay, I offer a qualified defense of government-mandated disclosure, one which recognizes the concerns of these prominent academics but also sees much of the anti-disclosure rhetoric of the Chamber and others as overblown and unsupported - offered disingenuously with the intention to create a fully deregulated campaign finance system in which large amounts of secret money flow in an attempt to curry favor with politicians but avoid public scrutiny. To the contrary, disclosure laws remain one of the few remaining constitutional levers to further the public interest through campaign finance law.Even in the Internet age, in which the costs of obtaining campaign finance data about small-scale contributions by individual donors often have fallen to near zero, there is virtually no record of harassment of donors outside the context of the most hot button social issue of gay marriage - and even there, much of the evidence is weak. In the face of evidence of a real threat of serious harassment, courts should freely grant exemptions from campaign finance laws. Even absent proof of harassment, Congress and state legislatures should modify their disclosure laws to protect the informational privacy of those individuals who use modest means to express symbolic support for candidates or ballot measures. But major players in the electoral process generally should not be able to shield their identities under a pretextual appeal to the prevention of “harassment” because of the important government interests in preventing corruption and providing valuable information to voters which are furthered by mandated disclosure. It is no surprise that the Internet has been primarily responsible for the loss of informational privacy in the campaign finance disclosure context. Perhaps more surprisingly, the Internet is at least indirectly responsible for strengthening the two primary government interests supporting mandatory disclosure. The rise of the Internet was a prime force in the unraveling of the older campaign finance regime, and the subsequent emergence of new campaign finance organizations such as “Super PACs” which raise the danger of the corruption of elected officials dramatically. Disclosure laws may not be the best tool to police the potential for corruption from these new or supercharged campaign finance vehicles. Nonetheless, disclosure laws are much better than nothing in ferreting out when an elected official might ","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"18 1","pages":"557"},"PeriodicalIF":0.0,"publicationDate":"2011-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91341055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this study, Professor Lindgren examined data on the 108 confirmed nominees to the U.S. Circuit Courts of Appeal from the administrations of George H.W. Bush and William J. Clinton. He shows - for the first time - evidence of differential treatment of nominees by the American Bar Association's rating committee. Yet this is not a simple story of apparent ABA bias toward Clinton nominees. Among confirmed nominees with the most important credential - prior judicial experience - Bush nominees fare roughly as well and sometimes even better than Clinton nominees. The problem arises for those without judicial experience. Here the apparent preference for Clinton appointees is strikingly large. Without controlling for any credentials, Clinton confirmed nominees have 9.1 times as high odds of getting a unanimous well qualified rating as do Bush confirmed nominees. Controlling for credentials, Clinton nominees have 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees. For those without prior judicial experience, just being nominated by Clinton instead of Bush is a stronger positive variable than any other credential or than all other credentials put together. The differences in how the ABA treats Bush and Clinton nominees reaches even to the committee's internal decision making. The ABA committee split its vote 33% of the time while evaluating Bush appointees, but only 17% of the time when evaluating Clinton appointees. This difference was concentrated among those who lacked prior judicial experience, where 50% of Bush appointees had split ratings, compared to only 10% of Clinton appointees with split ratings.
在这项研究中，林德格伦教授研究了乔治·h·w·布什和威廉·j·克林顿政府任命的108名美国巡回上诉法院大法官提名人的数据。他首次展示了美国律师协会(American Bar Association)评级委员会对被提名人区别对待的证据。然而，这并不是一个美国律师协会明显偏袒克林顿提名者的简单故事。在拥有最重要资历——先前的司法经验——的已确认提名人中，布什提名的人的表现与克林顿提名的人大致相同，有时甚至更好。对于那些没有司法经验的人来说，问题就出现了。在这里，对克林顿任命的人的明显偏好惊人地大。在不考虑资历的情况下，克林顿提名的候选人获得一致好评的几率是布什提名的9.1倍。在资历控制方面，克林顿提名人获得一致合格的ABA评级的几率是布什提名人的9.7-15.9倍。对于那些之前没有司法经验的人来说，仅仅是被克林顿而不是布什提名，比任何其他资历或所有其他资历加在一起，都是一个更强的积极变量。美国律师协会对待布什和克林顿提名人的方式存在差异，甚至影响到了委员会的内部决策。美国律师协会委员会在评估布什任命的大法官时，有33%的几率会拆分投票，但在评估克林顿任命的大法官时，这一比例仅为17%。这种差异主要集中在那些缺乏司法经验的人身上，布什任命的人中有50%的人评级不一致，而克林顿任命的人中只有10%评级不一致。
{"title":"Examining the American Bar Association's Ratings of Nominees to the U.S. Courts of Appeals for Political Bias, 1989-2000","authors":"James Lindgren","doi":"10.2139/SSRN.290186","DOIUrl":"https://doi.org/10.2139/SSRN.290186","url":null,"abstract":"In this study, Professor Lindgren examined data on the 108 confirmed nominees to the U.S. Circuit Courts of Appeal from the administrations of George H.W. Bush and William J. Clinton. He shows - for the first time - evidence of differential treatment of nominees by the American Bar Association's rating committee. Yet this is not a simple story of apparent ABA bias toward Clinton nominees. Among confirmed nominees with the most important credential - prior judicial experience - Bush nominees fare roughly as well and sometimes even better than Clinton nominees. The problem arises for those without judicial experience. Here the apparent preference for Clinton appointees is strikingly large. Without controlling for any credentials, Clinton confirmed nominees have 9.1 times as high odds of getting a unanimous well qualified rating as do Bush confirmed nominees. Controlling for credentials, Clinton nominees have 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees. For those without prior judicial experience, just being nominated by Clinton instead of Bush is a stronger positive variable than any other credential or than all other credentials put together. The differences in how the ABA treats Bush and Clinton nominees reaches even to the committee's internal decision making. The ABA committee split its vote 33% of the time while evaluating Bush appointees, but only 17% of the time when evaluating Clinton appointees. This difference was concentrated among those who lacked prior judicial experience, where 50% of Bush appointees had split ratings, compared to only 10% of Clinton appointees with split ratings.","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"1 1","pages":"1-39"},"PeriodicalIF":0.0,"publicationDate":"2001-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79894743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Should human cloning be criminalized?","authors":"I H Carmen","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83111,"journal":{"name":"The Journal of law & politics","volume":"13 4","pages":"745-58"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26571179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：