The Influence of Government Defenders on Affirmative Civil Rights Enforcement

The focus of this brief Article will be on a conundrum, particularly in the area of civil rights enforcement: the federal government—in particular the DOJ—can be one of the most efficient and powerful vindicators of civil rights, while at the same time one of the most effective advocates for imposing barriers to affirmative civil rights enforcement. At the same time that the DOJ’s Civil Rights Division (CRD) is entering federal court to “vindicat[e] rights and remedy[] inequities,” attorneys in the Civil Division (either from Main Justice or in any number of U.S. Attorney’s offices) are appearing in court to prevent the same. No doubt the same observation applies to certain state governments that have active affirmative civil rights enforcement bodies while also maintaining well-resourced defensive litigation bureaus. For my purposes, this observation has important consequences. It might bear on the professional obligations of the government attorney who appears in a defensive posture, a topic that Bruce Green and others have addressed in many thoughtful articles. I will address some potential ethical implications toward the end of this Article, but it is not my principal focus because I am not convinced that that is where the solution lies. Instead, I want to concentrate on what the observation means for executive branch law enforcement priorities, how the dynamic impacts broad access-to-justice concerns, and the implications for institutional design. I am going to try to do so in four parts. First, this Article contrasts agenda setting in defensive bureaus with agenda setting in the affirmative posture. Part I compares the defensive positions taken in two extremely similar cases—Ashcroft v. Iqbal and Ziglar v. Abbasi—that were litigated by the DOJ across two different presidential administrations. This is to help illustrate (admittedly by anecdote) that, even while affirmative enforcement priorities can change significantly from one administration to the other, defensive litigating positions can remain remarkably stable. Parts II and III turn to showing what consequences this has in the context of civil rights enforcement. Part II starts with the DOJ’s affirmative bureaus themselves, with a focus on the CRD. The goal is to show that the defensive bureaus impact the work of the CRD in at least two ways: (1) by channeling enforcement priorities into areas that will not conflict with defensive litigating positions and (2) by making affirmative enforcement priorities more difficult to secure through the spread of transsubstantive doctrine that suppresses rights enforcement, even in the areas in which there are no conflicts with defensive positions. Part III moves beyond the direct impact on CRD because defensive litigation positions taken by the DOJ can also suppress affirmative rights enforcement by “private attorneys general,” enforcement that nonetheless is consistent with the affirmative priorities of Main Justice. Finally, Part IV offers some thoughts on what lessons we might draw from these observations. For the most part, I devote my attention to how institutional design might ameliorate the tensions I identify in this Article

Darwin and the Body Politic: Schaffle, Veblen, and the Shift of Biological Metaphor in Economics

A long tradition of thought in Western political philosophy compares the body of man to the political body. This traditional cosmological frame of reference was, with the publication of Darwin’s Origin of Species, overcome by the emergence of evolutionary social systems. Albert Schäffle [1831-1903] can fruitfully be considered the last major representative of the old trajectory of thought, and Thorstein Veblen [1853-1929] the first of the new. By comparing and contrasting their uses of biological metaphors and the places these occupied in their larger visions of society and the economy, the author explores some of the tensions generated in late nineteenth century political philosophy by the dramatic change in biological paradigm—in other words by Darwin’s first encounter with the body politic.

Asymptotic behaviour of gossip processes and small world networks

Both small world models of random networks with occasional long range connections and gossip processes with occasional long range transmission of information have similar characteristic behaviour. The long range elements appreciably reduce the effective distances, measured in space or in time, between pairs of typical points. In this paper, we show that their common behaviour can be interpreted as a product of the locally branching nature of the models. In particular, it is shown that both typical distances between points and the proportion of space that can be reached within a given distance or time can be approximated by formulae involving the limit random variable of the branching process.Comment: 30 page

The shortest distance in random multi-type intersection graphs

Using an associated branching process as the basis of our approximation, we show that typical inter-point distances in a multitype random intersection graph have a defective distribution, which is well described by a mixture of translated and scaled Gumbel distributions, the missing mass corresponding to the event that the vertices are not in the same component of the graph.Comment: 32 page

Low-Energy Scale Excitations in the Spectral Function of Organic Monolayer Systems

Using high-resolution photoemission spectroscopy we demonstrate that the electronic structure of several organic monolayer systems, in particular 1,4,5,8-naphthalene tetracarboxylic dianhydride and Copper-phtalocyanine on Ag(111), is characterized by a peculiar excitation feature right at the Fermi level. This feature displays a strong temperature dependence and is immediatly connected to the binding energy of the molecular states, determined by the coupling between the molecule and the substrate. At low temperatures, the line-width of this feature, appearing on top of the partly occupied lowest unoccupied molecular orbital of the free molecule, amounts to only $\approx 25$ meV, representing an unusually small energy scale for electronic excitations in these systems. We discuss possible origins, related e.g. to many-body excitations in the organic-metal adsorbate system, in particular a generalized Kondo scenario based on the single impurity Anderson model.Comment: 6 pages, 3 figures, accepted as PRB Rapid Communication

Textile and Clothing Safeguards: from the ATC to the Future

The Agreement on Textiles and Clothing established the textile and clothing safeguards regime from 1995 to 2004. The current safeguards regime for these products is defined in terms of the Agreement on Safeguards, the China Textile Safeguards, and the China Product-specific Safeguards. This article examines each of these three current safeguard options and assesses them in terms of a number of relevant dimensions. It also reviews safeguard actions to date to provide a sense of continued managed trade in this area.managed trade, protectionism, safeguards, textiles and clothing, International Relations/Trade,

The Relevance of Ragnar Nurkse and Classical Development Economics

In this essay we aim to show, first, how the classical development economics, that of Ragnar Nurkse's (1907-1957) generation, epitomized the best development practices of the past 500 years and crafted them into what Krugman rightly calls high development theory. It is not a coincidence that the post-World-War-II era, when Nurkse and others ruled the development mainstream, is one of exceptionally good performance for many poor countries. Second, we argue that the alleged death of the classical development economics and subsequent rise of the Washington Consensus has to do not so much with increasing modeling in economics, a way of research purposely discarded by many classical development thinkers, but much more with misunderstanding the reasons for East Asia's success and Latin America's demise; we show that the root cause of this misunderstanding - that goes in fact back to 'misreading' key passages in Adam Smith - is the role of technology, or of increasing returns activities, and of finance, in development. Third, we aim to indicate key areas of further research that the current development mainstream should pursue in order to re-learn how to create middle-income economies and middle-class jobs.