Posted by: Patrick Allen Foster | May 27, 2014

Papers, Noted

1. Renata Strause and Dan Tokaji, “Building a Record for the Next Court” (Ohio State Public Law Working Paper No. 240):

This article considers the evidence that should be collected and developed to support the next generation of campaign finance reform before the next Supreme Court. It discusses but ultimately sidesteps theoretical debates over rationales for reform, focusing instead on the practical questions likely to be faced by future policymakers, lawyers, and expert witnesses. Drilling down into the ample evidentiary record in McConnell v. Federal Election Commission, the article addresses the evidence that should be amassed by supporters of future regulation. This type of evidentiary record will be essential both in formulating the next generation of campaign finance reforms and in defending them in court. The article argues that, regardless of whether one favors an anti-corruption or egalitarian rationale for regulation, the evidentiary record should focus on conflicts of interest – in particular, on whether a reasonable legislator would feel pressure to act in way that is different from the preferences of her constituents or the public interest. This is something more than a showing of unequal access, but something less than a showing of actual influence on policymaking. In the near term, these suggestions are designed to help define a research agenda for qualitative and quantitative empirical researchers. In the long term, they offer a roadmap for legislators shaping and lawyers defending future regulations before a Supreme Court less reflexively antagonistic to reform than the current one.

(H/T: Rick Hasen, Election Law Blog.)

2. Drew Stevens, “By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage,” 63 Emory Law Journal 979 (2014):

This Comment argues that (1) the Free Exercise Clause, as currently interpreted, does not protect licensed religious officials from a law forbidding them to discriminate against same-sex couples and (2) the typical marriage solemnization ceremony by a licensed religious official violates the Establishment Clause. This Comment also presents several solutions to remedy these paradoxical outcomes under the law. First, as to the Free Exercise Clause issue, this Comment proposes both statutory and judicial remedies that would exempt licensed religious officials from laws that prohibit discrimination in exercising marriage solemnization licenses. Second, as to the Establishment Clause issue, this Comment proposes narrow time, place, and manner restrictions on religious weddings and consecrations of civil marriages that would remedy the Establishment Clause violation without requiring states to strip religious officials of their licenses to solemnize civil marriage.

(H/T: Howard Friedman, Religion Clause blog.)

3. Stephen C. Nelson, “Playing Favorites: How Shared Beliefs Shape the IMF’s Lending Decisions,” Intl. Org. 68:2 (May 2014):

International organizations (IOs) suffuse world politics, but the International Monetary Fund (IMF) stands out as an unusually important IO. My research suggests that IMF lending is systematically biased. Preferential treatment is largely driven by the degree of similarity between beliefs held by IMF officials and key economic policy-makers in the borrowing country. This article describes the IMF’s ideational culture as “neoliberal,” and assumes it to be stable during the observation window (1980–2000). The beliefs of top economic policy-makers in borrowing countries, however, vary in terms of their distance from IMF officials’ beliefs. When fellow neoliberals control the top economic policy posts the distance between the means of the policy team’s beliefs and the IMF narrows; consequently, IMF loans become less onerous, more generous, and less rigorously enforced. I gathered data on the number of conditions and the relative size of loans for 486 programs in the years between 1980 and 2000. I collected data on waivers, which allow countries that have missed binding conditions to continue to access funds, as an indicator for enforcement. I rely on indirect indicators, gleaned from a new data set that contains biographical details of more than 2,000 policy-makers in ninety developing countries, to construct a measure of the proportion of the top policy officials that are fellow neoliberals. The evidence from a battery of statistical tests reveals that as the proportion of neoliberals in the borrowing government increases, IMF deals get comparatively sweeter.

(H/T: LFC, Howl at Pluto.)

All emphases added.

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