Lawyers and the Conservative Counterrevolution

2018 ◽  
Vol 43 (04) ◽  
pp. 1698-1728 ◽  
Author(s):  
Ann Southworth
Keyword(s):  
Public Policy ◽  
The Other ◽  
American Government ◽  
Law And Politics ◽  
Legal Activism ◽  
The Federalist ◽  
Legal Advocacy ◽  
American Law ◽  
Roll Back ◽  
Conservative Turn

What roles have lawyers played in the conservative counterrevolution in US law and public policy? Two recent books, Jefferson Decker's The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (2016), and Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (2015), speak to the question. This essay explores how these books relate to a larger story of the conservative legal movement and the roles that lawyers and their organizations and networks have played in the conservative turn in American law and politics. It highlights four interrelated threads of the movement's development: creating a support structure for conservative legal advocacy; remaking the judiciary and holding judges accountable; generating, legitimizing, and disseminating ideas to support legal change; and embracing legal activism to roll back government. The essay then considers a continuing challenge for the movement: managing tensions among its several constituencies. Finally, it suggests how this story has played out in litigation to challenge campaign finance regulation.

Clientelism, Law and Politics. Considerations in the Light of the Argentine Case

2017 ◽  
Vol 10 (2) ◽  
Author(s):  
Pedro Rivas
Keyword(s):  
Public Policy ◽  
Political Action ◽  
Critical Evaluation ◽  
Point Of View ◽  
The Other ◽  
Law And Politics ◽  
Other Hand ◽  
Political Relations ◽  
The One ◽  
Empirical Approaches

AbstractThe purpose of this article is, on the one hand, to explain what clientelism is through a description of its characteristics in its current Argentinean form. On the other hand, it will evaluate clientelism from a legal and political point of view. In order to achieve these purposes, we will distinguish clientelism from legitimate politics, and then offer a critical evaluation in case there were any differences. Regarding the first objective, it will be necessary to resort to some kind of canonical definition, broad enough to grasp different clientelistic phenomena. Then, it will be possible to explain its Argentinean particularities, noting that it happens to be a specially interesting kind of clientelism because of its refinement and breadth. As to the second objective, we will oppose to the reasoning that equates clientelism and legitimate types of political action. We will argue that ordinary politics is different and that, in fact, this difference turns clientelism illegitimate. Criticism against clientelism may include empirical approaches but, as these only show deficiencies of a particular public policy, they lack the ability to be extended to other cases. Alternative criticism may be more interesting, but it will necessarily be weaker as it may only reveal a model of citizens and political relations upon which clientelism is grounded.

“In the Mold of Justice Scalia”: The Contours & Consequences of the Trump Judiciary

The Forum ◽  
2021 ◽  
Vol 19 (1) ◽  
pp. 117-142
Author(s):  
Amanda Hollis-Brusky ◽  
Celia Parry
Keyword(s):  
Public Policy ◽  
Reagan Administration ◽  
Voting Rights ◽  
Culture Wars ◽  
Policy Studies ◽  
Federal Judiciary ◽  
Electoral Outcomes ◽  
Law And Politics ◽  
The Federalist ◽  
The Supreme Court

Abstract This article reviews the causes, contours and potential consequences of President Donald J. Trump’s 234 appointments to the federal judiciary. The causes will be familiar to political scientists who are fond of reminding people that “elections have consequences” and that the “Supreme Court [and by extension entire federal judiciary] follows the election returns.” The contours of the Trump Judiciary are congruent with Trump’s campaign promise to appoint judges “in the mold of Justice Scalia,” the conservative legal icon who died suddenly in February 2016. We show how Trump and Senate majority leader Mitch McConnell made good on this promise with the help of the Federalist Society for Law and Public Policy Studies, appointing ideologically conservative, young, and mostly male and white judges to lifetime appointments on the federal bench. In laying out the potential consequences of Trump’s remaking of the federal judiciary, we outline three areas where these judges are likely to make an impact on law and politics in the coming decades: rolling back liberal and progressive victories in the culture wars, likely in more subtle ways that align with Alison Gash’s concept of “below-the-radar” legal change; extending the federal deregulation campaign that began in earnest with the Reagan Administration; and issuing rulings in the areas of voting rights, campaign finance, and redistricting that tip the scales of democracy in favor of Republican electoral outcomes.

Equality, adequacy, and stakes fairness: Retrieving the equal opportunities in education approach

2010 ◽  
Vol 8 (3) ◽  
pp. 249-268 ◽  
Author(s):  
Lesley A. Jacobs
Keyword(s):  
Public Policy ◽  
Educational Policy ◽  
The Other ◽  
Education For All ◽  
Policy Agenda ◽  
Equal Opportunities ◽  
Educational Adequacy ◽  
Deep Roots ◽  
American Law ◽  
School Financing

Two approaches to making judgments about moral urgency in educational policy have prevailed in American law and public policy. One approach holds that educational policy should aspire to realizing equal opportunities in education for all. The other approach holds that educational policy should aspire to realizing adequate opportunities in education for all. Although the former has deep roots in American culture and its jurisprudence, a common narrative is that in recent years the equal opportunities approach has been displaced by the educational adequacy approach, which is said both to have enjoyed much greater success in the school financing litigation as well as to be theoretically more defensible. The present article is designed to make a contribution to the retrieval of the equal opportunities approach. It does so by sketching out a theory of equal opportunities in education organized around the idea of stakes fairness that can withstand the criticisms often made of that approach and by showing how that theory is better able than the educational adequacy approach to address the fairness of a more robust educational policy agenda that extends beyond school financing.

scholarly journals Paradoxes of Strategic Labour Rights Litigation: Insights from the Baldia Factory Fire Litigation

2021 ◽  
pp. 59-96
Author(s):  
Faisal Siddiqi
Keyword(s):  
The Other ◽  
Judicial Process ◽  
Policy Proposal ◽  
Structural Injustice ◽  
Legal Proceedings ◽  
Labour Rights ◽  
Legal Activism ◽  
Legal Context ◽  
Legal Advocacy ◽  
Empirical Foundation

AbstractThis chapter focuses on the legal activism that followed the Ali Enterprises factory fire and its aftermath in Pakistan. This chapter has two purposes: firstly, it documents the legal proceedings that were initiated and pursued in the courts of Pakistan as well as its interconnected developments. Secondly, I aim to use this engagement with the legal proceedings of the Baldia factory fire aftermath as an opportunity for an in-depth reflection on the capacity and, finally, suitability of the judicial process to bring about justice in struggles over human and labour rights. Providing a rare and insider account of the legal proceedings in the Pakistani courts and its interconnected developments, I hope to lay the empirical foundation for the theoretical and strategic claims of this study. It is against the background and based on the experience with the litigation and legal advocacy following the Baldia fire that I examine the two what I perceive as “paradoxes” at the heart of the litigation. The first is the inseparability of the “limited justice” that may result from such litigation on one hand, and the “structural injustice” that informs and determines the conditions the litigation seeks to address—and transform—on the other hand. The second paradox concerns the inseparability of both law and lawlessness as regards the legal context of the litigation, advocacy and policy proposal elements that are here in play.My argument is that these apparently contradictory phenomena not only coexist alongside one another but that they guarantee each other’s existence. This analysis leads me to the conclusion that in order to understand and improve such forms of strategic litigation, it is necessary to measure its success and failure in terms of three distinct but interconnected criteria. These are the tactical, strategic and structural impacts of the litigation. Ultimately, I will argue for rejecting what is often perceived by involved stakeholders to be an unavoidable choice between nihilism, euphoria or incremental reform in this context. But, to the contrary, I will argue for a conception of legal struggles as a means of building sustainable and fruitful forms of resistance and of change based on the recognition and exploitation of these irreconcilable paradoxes rather than fruitless attempts to ignore or transcend these irreconcilable contradictions.

The Fundamental Contradiction Redux? Liberty, Coercion, and American Legal Development

2017 ◽  
Vol 42 (03) ◽  
pp. 924-942
Author(s):  
Paul Baumgardner
Keyword(s):  
American Government ◽  
Legal Scholarship ◽  
Legal Development ◽  
Liberal Tradition ◽  
Law And Politics ◽  
American Law

In Liberty and Coercion: The Paradox of American Government from the Founding to the Present, Gary Gerstle offers an ambitious account of American legal development from our nation's founding up to the present day. In many ways, Gerstle's account is in keeping with the long scholarly tradition of linking legal liberalism with changes in American law and politics. However, Liberty and Coercion also calls to mind critical legal scholarship, most notably Duncan Kennedy's “The Structure of Blackstone's Commentaries” and the idea of the fundamental contradiction. After reconstructing Kennedy's central claims, I highlight how they actually undermine Liberty and Coercion and jeopardize the larger legal liberal tradition.

The Madisonian Republic and Modern Nationalist Populism: Democracy and the Rule of Law

World Affairs ◽  
2018 ◽  
Vol 181 (2) ◽  
pp. 106-132
Author(s):  
Anthony R. Brunello
Keyword(s):  
Rule Of Law ◽  
The Other ◽  
Western World ◽  
American Government ◽  
The Rule Of Law ◽  
Federal Constitution ◽  
The Federalist ◽  
State And Society ◽  
The Republic ◽  
The U.S

The U.S. Federal Constitution was built to be a machine for displacing conflict. Madison and the other Framers erected a Federal Republic organized to control populist movements and preserve the interests of the greatest stakeholders, while offering the “most liberty imaginable” in 1788. In 2016, a populist movement ascended to the commanding heights of power. How did it happen and what are the consequences when a faction comes to power? Is it a defect of the modern structure of American government? Has the U.S. Constitution reached a place where it is no longer functional? Or can Madison’s Republic continue to work against popular factions rising in a common passion fired by fear and hatred? In tackling these questions, this article suggests that the U.S. Constitutional Framers did not know in 1788 what exiting the aristocratic and feudal world would mean and what kind of state and society the Republic would become. I argue Madison’s contributions to The Federalist are exemplars of the engineer showing how each part of the machine fits together to achieve a comprehensive and effective whole. The national populism of the kind circulating around the Western world in 2016 has posed real challenges to that machinery.

Is Racial Equality Unconstitutional?

2018 ◽  
Author(s):  
Mark Golub
Keyword(s):  
Racial Formation ◽  
Racial Equality ◽  
Racial Consciousness ◽  
Constitutional Order ◽  
Racial Democracy ◽  
Law And Politics ◽  
Peculiar Form ◽  
American Law ◽  
Racial Domination ◽  
Fundamental Transformation

This concluding chapter considers the implications of the book’s central claims: that constitutional law marks a contested site of racial formation, that color-blind constitutionalism represents an assertion of white racial interest and identity, and that the peculiar form of racial consciousness it enacts renders the pursuit of racial equality a violation of white rights. Taking up the question of political possibility within a legal system constituted by racial domination, the chapter suggests that racial equality may not be achievable within the current American constitutional order. It calls for a rethinking of American law and politics from the premise that racial equality will require a more fundamental transformation than these constraints would permit, and points toward an explicitly antiredemptive political vision upon which a more authentic racial democracy might be founded.

Simulations: Urban Fiscal Crisis

1986 ◽  
Vol 51 ◽  
pp. 15-17 ◽  
Author(s):  
Marcus D. Pohlmann
Keyword(s):  
Public Policy ◽  
Role Playing ◽  
The Other ◽  
Fiscal Crisis ◽  
Educational Game ◽  
Political Environment ◽  
Policy Problem ◽  
Other Hand

PurposeI wish to describe a role-playing simulation, as opposed to an educational game. A game normally has an elaborate set of rules and requires participants to function within the logic of its own reality. A role-playing simulation, on the other hand, allows the participants to maintain their own personalities and values as they interact within far more general roles and rules, creating a unique reality each time. The goal of this particular simulation is to overcome a public policy problem within a simulated political environment.

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