Foreward: A Place at the Table Article
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Elizabeth Berenguer, Foreward: A Place at the Table, 1 Savannah L. Rev. vii (2014)Clicking on the button will copy the full recommended citation.
Articles
Electoral Silver Linings After Shelby, Citizens United and Bennett Article
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Ciara Torres-Spelliscy, Electoral Silver Linings After Shelby, Citizens United and Bennett, 16 Berkeley J. Afr.-Am. L. & Pol'y 103 (2014)Clicking on the button will copy the full recommended citation.
This short essay addresses severability in recent U.S. Supreme Court cases about election law: Shelby Co. v. Holder, Citizens United v. FEC and Arizona Free Enter. Club's Freedom Club PAC v. Bennett. The glass is actually half full because the high court tends to leave most of the laws they are reviewing intact.
The Democracy We Left Behind in Greece and McCutcheon Article
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Ciara Torres-Spelliscy, The Democracy We Left Behind in Greece and McCutcheon, 89 N.Y.U. L. Rev. 112 (2014)Clicking on the button will copy the full recommended citation.
The U.S. Supreme Court used to regularly police the line between political and economic spheres and the line between Church and State. The Court in 2014 abandoned both posts. As evidenced by McCutcheon v. FEC, the Supreme Court is not protecting democracy from creeping oligarchy served up one campaign contribution at a time. As evidenced by Town of Greece v. Galloway, the Supreme Court is not protecting democracy from creeping theocracy served up one public prayer at a time. In both areas of First Amendment law (Free Speech and Establishment Clause), the Court feigns neutrality when it is really picking sides and the side that the Court picks is the one that already has the most power. This short essay will explore how the modern Court’s Establishment Clause jurisprudence parallels its campaign finance jurisprudence and how both have the potential to create a privileged class and a second class.
Running the D.C. Circuit Gauntlet on Cost-Benefit Analysis after Citizens United: Empirical Evidence from Sarbanes-Oxley and the JOBS Act Article
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Ciara Torres-Spelliscy et al., Running the D.C. Circuit Gauntlet on Cost-Benefit Analysis after Citizens United: Empirical Evidence from Sarbanes-Oxley and the JOBS Act, 9 Duke J. Const. L. & Pub. Pol'y 135 (2014)Clicking on the button will copy the full recommended citation.
To require disclosure or not to require disclosure; that is the question faced by regulators, including the Securities and Exchange Commission (SEC), in light of the Supreme Court’s 2010 Citizens United decision, which allows anew free flow of corporate money into the political system.
Pending before the SEC since 2011 is a petition by 10 law professors asking for transparency of corporate political spending. We write this article in anticipation of the SEC’s eventual promulgation of rules requiring disclosure of corporate political spending. Many of the core questions about the market’s reaction to increased regulation of listed companies that we can study now are likely to be implicated in the debate about regulation within the narrower subset of corporate political spending.
Corporations who do not want to disclose their political spending are likely to challenge any rule that the SEC issues on the subject. Such a legal challenge is destined to be heard by the D.C. Circuit Court, which examines federal regulations with an increasingly jaundiced eye. One of the ground on which the D.C. Circuit can dispose of a new regulation is by finding that the SEC did not do a sufficiently rigorous cost-benefit analysis.
This article addresses the potential hostility that the D.C. Circuit may harbor against a new SEC rule requiring greater corporate transparency in election activities and provides some data that might assist the SEC in navigating this gauntlet.
In summary, our data showed that the market reacted positively to the new regulations in SOX and reacted negatively to the deregulations embodied in the JOBS Act. In short, and as discussed more fully below, the data demonstrate that the market values transparency and distrusts opaqueness. We hope that the D.C. Circuit will find these data useful in illuminating the larger debate over what securities regulations are allowable.
Heads They Win, Tails You Lose: New York Decombination and Discretionary Adjustments Article
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Andrew D. Appleby et al., Heads They Win, Tails You Lose: New York Decombination and Discretionary Adjustments, Tax Analysts: State Tax Notes (2014)Clicking on the button will copy the full recommended citation.
Subtly Selling the System: Where Psychological Influence Tactics Lurk in Judicial Writing Article
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Anne E. Mullins, Subtly Selling the System: Where Psychological Influence Tactics Lurk in Judicial Writing, 48 U. Rich. L. Rev. 1111 (2014)Clicking on the button will copy the full recommended citation.
The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What to Do About It Article
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Will Bunting, The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What to Do About It, 70 N.Y.U. Ann. Surv. Am. L. 41 (2014)Clicking on the button will copy the full recommended citation.
This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.” While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based. A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population. A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population. Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy. The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.
Intra-Group Diversity in Education: What If Abigail Fisher Were An Immigrant. . . Article
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Dagmar Myslinska, Intra-Group Diversity in Education: What If Abigail Fisher Were An Immigrant. . ., 34 Pace L. Rev. 736 (2014)Clicking on the button will copy the full recommended citation.
Social and cultural capital enable students to more easily access and take advantage of higher education. By lacking access to the social capital of the dominant group, immigrants do not benefit from education on equal terms with those who belong to the norm. High school participation, college preparation, and involvement in college reflect and amplify access to social capital, particularly at elite universities. Colleges’ definition of “merit” in admissions decisions replicates inequalities in access to social capital. While scholars have noted how racial minorities and students of low socioeconomic status are disadvantaged in the educational system, they have overlooked how immigrant status per se limits access to social capital and its benefits. Affirmative-action discussions also tend to be racialized, even if they intersect with immigration-policy debates. In theory, admission preferences are based on the assumption that those not belonging to the dominant group are less effective in the competition for resources, such as education. At its core, this assumption should be defined to include any deficiency in access to social capital. By recontextualizing affirmative-action rhetoric in this way, all immigrants’ challenges can be more easily recognized. At the same time, all immigrants’ contribution to diversity -- the only justification for affirmative-action remaining after the recent decision in Fisher v. University of Texas -- could be more fully recognized, while increasing intra-group diversity. The intersection of whiteness and outsider jurisprudence, in the context of access to social capital, provides a better understanding of how intra-group diversity can be achieved in education, and how we can create a more integrated society, paving way for a more meaningful democracy.
Can Parents Lose Custody Simply Because They are Disabled? Article
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Robyn Powell, Can Parents Lose Custody Simply Because They are Disabled?, 31 GP Solo 14 (2014)Clicking on the button will copy the full recommended citation.
Overview of the current state of rights for parents with disabilities and advice for attorneys.
Contemporary First-Generation European-Americans: The Unbearable ‘Whiteness’ of Being Article
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Dagmar Myslinska, Contemporary First-Generation European-Americans: The Unbearable ‘Whiteness’ of Being, 88 Tul. L. Rev. 559 (2014)Clicking on the button will copy the full recommended citation.
Contemporary European immigrants face unique socio-cultural and legal concerns that go beyond issues of race, class, national origins, or accent discrimination. These concerns are not adequately addressed by laws protecting groups based on their national-origins or ancestries. Scholarship and public discussions are silent on this topic. As a result, European-born Americans fall through the cracks in critical legal theory, not fitting into any of the traditional analytical frameworks. No labels apply to them. Like their predecessors a century ago, they are expected to assimilate easily. At the same time, they are (incorrectly) assumed to always, and uniformly benefit from access to white privilege. In reality, European-born Americans oscillate between being visible as foreigners, and fading into the invisible “white” norm. A closer analysis of their culturally-constructed identity — as illustrated by looking at employment discrimination — exposes the artificiality of the concept of “whiteness.” A more accurate understanding of European immigrants’ experience also calls for a more holistic and consistent definition and application of “national origins” protections under Title VII, and of “race”-based safeguards under section 1981. Looking more critically at the European immigrant experience points to the benefits of separating the concept of foreignness from the study of “race,” which often gets conflated with notions of national-origin and ethnicity.