Federalism and the Police: An Applied Theory of “Fiscal Attention”

2017, Past Issues, Print, Volume 49 (2017) Issue 3 (Fall)
Peter J. Boettke, Liya Palagashvili & Ennio E. Piano. Policing in America has made a drastic transformation over the midtwentieth century. Local police agencies today are more federally funded, they “dress” like the military, they police more federal initiatives, and the constitutional and fiscal boundaries between local police and the federal government have been blurred. At the same time, conflicts between communities and the police have intensified and the trust between the two has diminished. Our paper investigates the transformation of local policing in a federal system. We analyze how the decisions of policymakers and agencies at the federal level can alter the choice set and associated payoffs faced by local police departments, and how that changes the nature of local policing services. We then discuss how this framework can…
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Dealing with Disaster: Analyzing the Emergency Constitutions of the U.S. States

2017, Past Issues, Print, Volume 49 (2017) Issue 3 (Fall)
Christian Bjørnskov & Stefan Voigt. The study of constitutional emergency provisions remains in its infancy. We present the first overview and analysis of how specific emergency provisions vary across the fifty U.S. state constitutions. The emergency provisions vary considerably across states with the Texas Constitution exhibiting the most limited provisions and Georgia the most expansive ones. A cluster analysis shows support for dividing the U.S. constitutions into six “families” and reveals the Texas Constitution as substantially different from the rest. We explore whether these constitutional choices may have been affected by disaster risk, prevailing ideology, state wealth, and other factors for which historical data exist. We provide tentative evidence showing that emergency provisions have a significant effect on both the number of fatalities as well as on the damage suffered in…
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Voting vs. Moving: Exit and Voice Mechanisms in the EU Federalism

2017, Past Issues, Print, Volume 49 (2017) Issue 3 (Fall)
Rosamaria Bitetti. European economic crisis has put a strain to the European Union governance model, which has been for a long time characterized by a multi-layered decision-making process, affected more by expert-technocratic knowledge than by democratic participation. This paper analyzes two forms of feedback European citizens have given to a crisis that affected asymmetrically different member states, undermining the ability for the central level to coordinate the local levels. The first response is political: European member states, as well as EU parliamentary election, have experienced in these recent years the rise of “populist” parties and a strong antagonistic reaction to an increased number of referendums in EU member states. The other feedback is migration: intra-EU migration, while being one of the four pillars of European integration, has always been a relatively…
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Regulatory Consistency Requirements in International Trade

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Alan O. Sykes. One of the most challenging tasks for international trade agreements is to distinguish protectionist regulation from legitimate regulatory policies. An important set of tools in this regard may be termed “regulatory consistency requirements.” These include the national treatment obligation of GATT, which requires that imported goods be treated no less favorably than “like” domestic goods by regulators. Further consistency requirements were introduced at the formation of the WTO. These newer consistency requirements allow challenges to domestic regulation based on disparate policies toward different products and industries (such as beef and pork, or salmon and baitfish). This paper explores the economic logic and legal scope of consistency requirements in WTO law. The central claim is that narrow consistency requirements such as the national treatment obligation are helpful in the…
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Liberal Internationalism and the Populist Backlash

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Eric A. Posner. A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises. Full Article
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A (Qualified) Defense of Secret Agreements

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Ashley S. Deeks. This article sets out to describe and defend—with certain qualifications—the use of secret commitments in contemporary practice, with a focus on those to which the United States is a party. Secret commitments should not always be viewed with suspicion and hostility. Notwithstanding their opacity, these commitments perform a critical role in shaping legal and strategic interactions between the United States and other states. Further, the evidence belies the idea that states predominately resort to secrecy when they intend to violate international norms. Most of those commitments that have come to light are—counter-intuitively, perhaps—consistent with the U.N. Charter, and in some cases actually advance the Charter's purposes. Full Article
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The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Daniel Bodansky. Since the emergence of the international climate change regime in the early 1990s, frustration with the slow pace of the negotiations has bubbled over from time to time in proposals to address climate change through international adjudication.1 I was involved in one such episode two decades ago, as part of a team of international lawyers researching the claims that small island states might bring for climate change damages. A dozen years later, the idea of climate change litigation was revived by the Pacific island state of Palau, which proposed that the United Nations General Assembly request an advisory opinion from the International Court of Justice (I.C.J.) concerning the duties of states to ensure that greenhouse gas emissions from their territory do not harm other states.2 That initiative didn’t…
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Prizeless Wars, Invisible Victories: The Modern Goals of Armed Conflict

2017, Past Issues, Print, Volume 49 (2017) Special Issue
Gabriella Blum. By restricting the permissible justifications for war and excluding all tangible benefits from the permissible goals of war, replacing both with an amorphous, however seemingly narrow interest in “defense,” those clear yardsticks have been lost. As a result, we no longer have a clear metric of success that marks the sufficiency of the force used: there is no recognizable moment in which the war has achieved its legitimate goals. Victory can no longer be measured by concrete benefits but only by the absence of concrete harms. And an absence is hard to prove. Modern wars, as a consequence, may have more morally legitimate reasons, but they are also more difficult to judge and to restrict. . . . The justifications and goals of war may have always been…
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Free to Do No Harm: Conscience Protections for Healthcare Professionals

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
Kevin H. Theriot & Ken Connelly. The right to conscience of medical practitioners and related healthcare professionals has come under increasing attack in recent years. Examples abound of individuals and institutions being compelled to act against their will and their beliefs. Yet despite this unfortunate reality, it is difficult to conceive of a scenario in which the right to conscience for medical practitioners should not prevail in a conflict with some other claimed imperative, especially given its historical and philosophical pedigree. Full Article
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No One Knew What to Expect: Breaking the Phoenix Gender Barrier in 1969

2017, Past Issues, Print, Volume 49 (2017) Issue 2 (Summer)
The Honorable Mary M. Schroeder. 1968 was not a good year for the world, for the United States, or for my husband, Milt, and me. The Vietnam War and public reactions to it were going so badly that in March, President Lyndon Johnson announced he would not stand for re-election in the fall. In April, Martin Luther King was gunned down in Memphis, sparking nation-wide riots including unrest in our Capitol Hill neighborhood in Washington, D.C. The ruckus drove Milt and me out of our little house at 8½ E Street Southeast and into the Virginia countryside while military units descended on Washington to keep order. Things became even worse when, in June, our great hope for the future, Bobby Kennedy, was shot in Los Angeles in a hotel kitchen,…
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