Volume 2013, Number 2
Informing Consent: Voter Ignorance, Political Parties, and Election Law
Christopher J. Elmendorf & David Schleicher | 2013 U. Ill. L. Rev. 363
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This paper examines what law can do to enable an electorate comprised of mostly ignorant voters to obtain meaningful representation and to hold elected officials accountable for the government’s performance. Drawing on a half century of research by political scientists, we argue that political parties are both the key to good elections and a common cause of electoral dysfunction. Party labels can help rational, low-information voters by providing them with credible, low-cost, and easily understood signals of candidates’ ideology and policy preferences. But in federal systems, any number of forces may result in party cues that are poorly calibrated to the electorate and issue space of subnational governments. Further, the geographic clustering of partisan voters can lead to persistently dysfunctional elections at subnational levels, however well calibrated the major-party cues, because in these communities the aggregation of votes will not neutralize (as it otherwise would) the ballots cast by citizens whose party ties reflect their upbringing and social milieu more than their observations about what the government has done. To date, these problems have largely been the province of political science and sociology. We argue that they are problems of, and for, election law. Statutes and court decisions govern who selects a party’s candidates, what information appears on the ballot, and any number of other variables that affect the meaning and utility of party labels. Our analysis challenges the focus of decades of political science and legal scholarship, and sheds new light on important questions about party regulation, ballot design, the choice between partisan and nonpartisan elections, and the constitutional law of party rights.
Natural Law & Lawlessness: Modern Lessons from Pirates, Lepers, Eskimos, and Survivors
Paul H. Robinson | 2013 U. Ill. L. Rev. 433
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The natural experiments of history present an opportunity to test Hobbes’ view that government and law are the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet, despite, the wide variety of situations, common patterns emerge among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and a commitment to fairness and justice, although both can be subverted in certain predictable ways. These absent-law situations also illustrate the dependence of social order and cooperation on a group’s commitment to justice.
The insights from the absent-law situations have implication for several modern criminal justice issues, including the appropriate distributive principle for criminal liability and punishment, restorative justice programs, the movement to promote non-incarcerative sanctions, transitional justice and truth commissions, the limitations on use-of-force rules under international law, fairness procedures promoting the legitimacy of criminal adjudication, and crime-control policies for fighting organized crime and terrorism.
The revolving door between jobs in the public and private sector supposedly incentivizes government regulators to regulate on behalf of the industry interests for whom they will eventually work. It is a critical building block of the critique of government solutions to modern problems, and has, in the last two years, been the subject of one of the Obama administration’s first executive orders, made an appearance in financial regulatory reform legislation, and been blamed for the government’s failure to prevent the Gulf oil spill and quickly pass health care reform.
But the revolving door’s explanatory power is remarkably overstated, especially when the subject is law enforcement. Most government officials have plenty of reasons to do a good job; it may even enhance their private sector earning potential, to say nothing of their more immediate futures in the public sector. The revolving door may also foster citizen participation in government. A study of the careers of a tranche of elite Manhattan prosecutors does not reveal any evidence of those who leave doing the bidding of those they regulate while in public service.
Moreover, as a legal matter, eliminating the revolving door would raise serious legal and even constitutional questions. The revolving door has become an overused shorthand for—at its worst—a toxic cynicism about government. It is time to reject it.
The decade since 9/11 has seen three phases in the government’s approach to the legal aspects of detainee policy in the “war on terrorism.” First, the Bush administration attempted to create a “law-free zone” in which it could deal with suspected terrorists free of legal restraint or interference by the other branches of government. After every rebuff by the Supreme Court the Administration responded by seeking the “least law alternative” and to that end invented new forms of adjudication: military commissions as substitutes for criminal trials, summary military tribunals to authorize indefinite detention without charge, and short-cut alternatives to traditional habeas procedures.
In the second phase, the Obama administration made significant progress toward its stated goal of returning to the rule of law in the national security arena—in particular, by announcing the closure of Guantanamo, the end of the military commission system, and a commitment to using the federal courts to prosecute terrorists.
The third phase began roughly with the return of the House of Representatives to Republican control in the 2010 elections. Congress employed its appropriations power to limit and then to foreclose the President’s ability to transfer detainees from Guantánamo, thus making it impossible to close the controversial detention center or to prosecute detainees held there in federal court, and forcing military commissions to resume. Thus, a decade that began with the executive branch’s assertion of sole and unconstrained power ended, ironically, with Congress asserting its power to countermand the executive branch’s decision to change its policies.
During the same period, the D.C. Circuit issued a series of decisions that effectively reversed the Supreme Court’s habeas decisions of 2004 and 2008. The Supreme Court’s failure to review these decisions has left detainees with essentially no meaningful opportunity to win release.
This article concludes by reflecting on these developments, the Obama administration’s often surprisingly effective responses, and where detainee policy is likely to go next.
Prostitution and The Right to Privacy: A Comparative Analysis of Current Law in the United States and Canada
Dannia Altemimei | 2013 U. Ill. L. Rev. 625
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The constitutional right to privacy is a cornerstone element to both the United States Constitution and the Canadian Charter of Rights and Freedoms, but a divergence in interpretation of the right to privacy in the United States and Canada has caused differing approaches toward dealing with prostitution laws in each country. The United States currently imposes a traditional moral standard, criminalizing those who engage in prostitution and rejecting right to privacy arguments. Contrastingly, Canada follows a regulation approach toward dealing with prostitution laws, and a trend toward less state regulation has emerged due to judicial and legislative action accepting constitutional right to privacy arguments. This Note presents a comparative analysis of federal constitutional regulations on prostitution in both the United States and Canada, including how the right to privacy has been used to challenge current prostitution laws and the differing responses of various courts to such challenges in Canada and the United States. Ultimately, this Note argues that the United States should take a similar approach to Canada, recommending that the United States follow international constitutional precedent toward the decriminalization of prostitution and draw a public-versus-private distinction within prostitution laws to effectively extend the constitutional right to privacy to private acts of prostitution.
This is A Remix: Remixing Music Copyright to Better Protect Mashup Artists
Kerri Eble | 2013 U. Ill. L. Rev. 661
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Modern copyright law has strayed from its original purpose as set out in the Constitution, and is ill-equipped to protect and foster new forms of artistic expression. Since the last major amendment to the Copyright Act, new art forms have arisen, particularly “mashup music.” This type of music combines elements of other artists’ songs with other sounds to create a new artistic work. Under modern copyright law, various courts treat this type of music inconsistently, creating uncertainty among mashup artists and stifling this new artistic expression. In addition, copyright law as applied to music unduly favors primary artists, sacrificing the Constitutional Copyright Clause’s focus on preserving the public domain.
This Note discusses the history of mashup music and its increasing popularity in the United States, as well as the relevant history of copyright law. This Note then discusses current safe harbors that exist under copyright law for secondary artists, and analyzes why mashups do not fit within these safe harbors. This Note concludes by recommending that the fair use exception be expanded to protect mashup artists by adding a safe harbor for “recontextualized” or “redesigned” artworks.
If It’s Broke, Fix It: Federal Regulation of Electrical Interstate Transmission Lines
Elena P. Vekilov | 2013 U. Ill. L. Rev. 695
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The current electrical transmission line regulatory system is broken,
preventing the nation from expanding the electricity grid to keep
up with growing energy consumption. The current regulatory scheme
reserves to the states siting authority over where new lines are constructed,
which often hinders project development because interstate
lines are not seen as good for the state’s own citizens. Natural gas
does not suffer the same infirmity, because it has been under federal
control since the Natural Gas Act of 1938. This Note traces the history
of the regulation of the two energy delivery systems—beginning
with local control over local utilities early in their development—to
today’s complex interstate systems. Then this Note analyzes three
possible regulatory approaches: (1) state control; (2) an intermediate
solution that retains state power to regulate line siting from each
state’s internal energy sources to its internal load centers, but allocates
to the federal government the power to construct interstate lines from
plentiful energy sources to distant load centers; and (3) a federal system
mirroring the system for siting natural gas pipelines. Finally, this
Note concludes that only a federal regulatory system modeled on the
natural gas pipeline regulations is adequate to keep up with growing