Dual Sovereignty Research Articles

Government Subsidies and Corporate Misconduct

ABSTRACTI study whether firms that receive targeted U.S. state‐level subsidies are more likely to subsequently engage in corporate misconduct. I find that firms are more likely to engage in misconduct in subsidizing states, but not in other states that they operate in, after receiving state subsidies. Using data on both federal and state enforcement actions, and exploiting the legal principle of dual sovereignty for identification, I show that this finding reflects an increase in the underlying rate of misconduct and that this increase is attributable to lenient state‐level misconduct enforcement. Collectively, my findings present evidence of an important consequence of targeted firm‐specific subsidies: nonfinancial misconduct that potentially could impact the very stakeholders subsidies are ostensibly intended to benefit.

The Age of Counter-revolution: States and Revolutions in the Middle East

The Age of Counter-revolution: States and Revolutions in the Middle East

Review: The Congressional Black Caucus: Fifty Years of Fighting for Equality, by Sherice Janaye Nelson

Review: <i>The Congressional Black Caucus: Fifty Years of Fighting for Equality</i>, by Sherice Janaye Nelson

Tax Discrimination: A Comparative Analysis of U.S. and E.U. Approaches

Earlier versions of this article were presented at the American Tax Policy Institute Roundtable,the 2004 Critical Tax Conference at Rutgers School of Law-Newark, Seton HallUniversity School of Law, the 2005 Critical Tax Conference at Seattle UniversitySchool of Law, the Tax Research Network Conference 2005 at Edinburgh Universityand the Comparative Fiscal Federalism Conference at the University of Michigan LawSchool.Both the United States of America and the European Union were founded in part because of the need for economic unity. The United States was formed in 1787 in hopes of a solution to “the mutual jealousies and aggressions of the States, taking form in customs barriers and other economic retaliation.” The U.S. Constitution, however, establishes the dual sovereignty of the states and the federal government and reserves to the states the power to define their own tax systems. More than one hundred and fifty years later, the founding countries of the European Economic Community strove to establish a common market in 1958. The Single European Act incorporated the objective of an internal market into the founding Treaty (known as the EEC Treaty). Thus, the European Union (EU) also has evolved into a project for economic union. To create such an economic union, the EEC Treaty contemplated the removal of obstacles to the free movement of goods, persons, services, and capital between the Member States. These Treaty provisions are known as the “four freedoms” and, together with the freedom of establishment, they constitute the fundamental rules of the European Community’s internal market.

Two Cheers for Lost Sovereignty Referendums: Campaigns for Independence and the Pouvoir Constituant Mixte

AbstractIn this article, I bring together three recent ideas from political theory and constitutional law. The first is the notion developed by Jürgen Habermas and Markus Patberg of a pouvoir constituant mixte. Complex polities such as supra-state federations should be understood as constitutional entities that combine two or more authorizing subjects. The default “mixed” conception is that of dual sovereignty, split between the federations’ member collectives and member individuals. The second idea is that of Stephen Tierney, that sub-state national societies should be seen as involved in struggles over constituent power. The third is the idea and practice of sovereignty referendums, which I illustrate by looking at the 2017 Catalonia independence referendum. I contend that, at a minimum, sovereignty referendums, especially lost ones, should be understood as strategies to bring about, shift or complement constituent powers, in achieving compound or mixed sovereignty. Finally, I venture into some ideas about the criteria of legitimacy for such endeavors, in distinguishing the activation of constituent powers from their articulation and exercise.

Constitutional and legal principles of Soviet Federalism

The subject of this research is establishment and development of the principles of Soviet federalism: ideocracy, class character, proletarian internationalism, party spirit, right of nations to self-determination, two-level nature, unity of legal space, dual sovereignty, inviolability of the territory of the republics, dual citizenship, etc. The goal lies in examination of the sources, peculiarities of constitutional layout, evolution of the principles of Soviet federalism, and their role in the crisis and downfall of the Soviet federalism. The author offers the&amp;nbsp;&amp;nbsp; definitions of such phenomena as the Soviet federalism and the Soviet federation, which defines the novelty of this work. Classification is given to the principles of Soviet federalism in accordance with the criteria outlined by the author: 1) by the time of emergence, the principles are divided into ideological (ideocracy, class character, proletarian internationalism, party spirit, right of nations to self-determination, etc.) and state-legal (single citizenship, inviolability of the territories of the republics, unity of legal system, supremacy of federal legislation, etc.); 2) by the method of codification, the principles are divided into constitutional (ideocracy, class character, right of nations to self-determination, etc.), and stemming from the essence of constitutional norms (asymmetry, party spirit, two-level nature). It is noted that some principles of Soviet federalism fade their significance over time (class character), while others are eliminated from the constitutional and legal practice (principle of mutual control over observance of the all-union and republican legislation). It is substantiated that Soviet federalism was jeopardized mostly by the fundamental interrelated ideological principles: ideocracy, party spirit, and right of nations to self-determination. The author&amp;rsquo;s special contribution consists in introducing archival documents into the scientific discourse.

The Powhatan Landscape: An Archaeological History of the Algonquian Chesapeake

The Powhatan Landscape: An Archaeological History of the Algonquian Chesapeake

Behind Bartkus

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy “dual sovereignty” that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.

Behind Bartkus: A Flamboyant Lawyer, a Vindictive Judge, and the Untold Story of Double Jeopardy’s Dual Sovereignty

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the ‘impartial’ judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from service for life, refuses to release the defendant, and prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy ‘dual sovereignty’ that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.

La doctrina de la soberanía dual en la jurisprudencia de la Corte Suprema de Estados Unidos

Under the dual sovereignty doctrine the Supreme Court has accepted that different sovereigns may prosecute an individual for the same facts without violating the double jeopardy clause if the act of the individual infringed the laws of each sovereignty. This article aims to analyze the evolution of the dual sovereignty doctrine in the case law of the Supreme Court of the United States. Although the doctrine has been highly criticized by scholars, the Supreme Court has persistently upheld it. . Besides, the article addresses the safeguards that currently exist against eventual abuses of the dual sovereignty doctrine, such as the “sham exception” and the “Petite Policy”. Finally, since the previous safeguards have been considered insufficient, the contribution briefly explores the possibility of applying the Eighth Amendment as an additional protection against eventual abuses committed under the dual sovereignty doctrine.

Unionisms in the UK’s Brexit crisis

ABSTRACT This article examines how UK, English, Scottish, Welsh and Northern Irish unionisms and unionists are responding to the Brexit crisis in the state. The United Kingdom faces a dual territorial sovereignty crisis, externally through Brexit in its relations with the European Union, and internally concerning the shape and survival of its own political union. Four constitutional trajectories are plausible: a breakup of the UK, a renegotiated UK, a differentiated UK, and a federal UK. Together with a related crisis in its central political institutions, this is a constitutional moment for the UK. After surveying how unionists perceive and frame these challenges to their unionisms, the article concludes with an assessment of how effective their responses are.

Double Jeopardy’s Dual Sovereignty: A Tragic (and Implausible) Lack of Humility

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a conception of constitutional community contrary to our Framers’ own; and when one reaches for a grab bag of history, jurisprudence, and commentary, that starting point makes a difference. Second, the Court ignored both the logic of America’s founding and recent double jeopardy jurisprudence, both of which strongly counsel against the exception in the federal-state context. We hope that a future Court will be more receptive to the nation’s constitutional structure and to the genuine but limited needs of criminal justice.

日本の「経験」とODAアプローチの再検討―主権の二重性の観点から

日本の「経験」とODAアプローチの再検討―主権の二重性の観点から

Negotiating justice: Ceasefires, peace agreements, and post-conflict justice

Post-conflict justice is an integral component in maintaining stability and building peace in the aftermath of civil conflict. Despite its instrumental function, scholars routinely find that policymakers’ choice of justice is shaped by the structural conditions of the post-conflict environment, with outright victories leading to retributive forms of justice and negotiated outcomes yielding restorative forms of justice. However, existing literature conflates ceasefires and peace agreements into a single phenomenon, thereby overlooking the independent effects of each outcome. Leveraging the dual sovereignty framework, this article argues the conflation of negotiated outcomes is problematic because peace agreements and ceasefires generate different post-conflict environments. Relative to ceasefires, peace agreements lead to a reduction in the degree of dual sovereignty because they resolve a conflict’s incompatibility, thereby encouraging efforts to move society beyond war through restorative forms of justice. Due to the persistent threat of recurrent war generated by high levels of dual sovereignty, policymakers following ceasefires will be inclined to pursue retributive forms of justice that may target political opponents or potential defectors to bolster organizational strength. Statistical analyses confirm the underlying expectation that ceasefires and peace agreements yield different post-conflict justice outcomes. Peace agreements, relative to ceasefires, are more likely to be followed by the implementation of amnesties and reparations, whereas ceasefires exhibit a greater probability of yielding purges in the post-conflict environment.

Double Jeopardy and Dual Sovereignty Doctrine: Gamble v. United States

Abstract: In Gamble v. United States, the defendant questioned the constitutionality of the dual sovereignty doctrine under the double jeopardy clause. In its judgment, delivered on 17 June, 2019, the United States Supreme Court upheld the application of the dual sovereignty doctrine, according to which different sovereigns may prosecute an individual without violating the double jeopardy clause if the individual's act infringed the laws of each sovereignty. This comment aims to address the reasoning of the Supreme Court and the rationale of the dual sovereignty doctrine, suggesting the convenience and necessity of a further study on its limits and the possible safeguards against potential abuses.

Introduction

Introduction

Recognizing multiple sovereignties: A starting point for Native American cultural resource consultation

ABSTRACTThe practice of archaeology within the USA necessarily involves issues of sovereignty, multiple worldviews and colonialism. Archaeologists must acknowledge both the reality of colonialism's legacy as well as our role in either supporting or confronting that history, and consultation with indigenous communities is oftentimes the main (if not only) venue for interrogating this legacy. This article, written in a dialogic format, presents and explores the role of a government agency's consultation policy within this framework of colonialism and dual sovereignty. However, it also discusses the limitation of policies and identifies areas in which continued improvement is needed. This article provides insight into the issues that are in play within consultation, concerns that may not be expressed but nevertheless have an impact, and the broader issues that agency representatives must consider so that archaeologists may have a better understanding of the decisions made within consultation discussions.

Sovereignty and Autonomy of Constituent Units in Federal and Quasi-Federal Systems: An Empirical Study of Italy

When outlining the main features of a federal state, scholars agree on the fact that both the federal government and the constituent units of a federation are sovereign in their own powers, meaning that they both share the “nature of state” and enjoy the whole bundle of functions and state powers. This idea of “divided sovereignty” between federal and peripheral units (entrenched for the first time in the US Constitution of 1787) is usually regarded as one of the most important features distinguishing a federal from a regional state: in fact, in a regional model sovereignty belongs to the centre, with territorial sub-units merely enjoying some mild form of autonomy. In other words, in regional states peripheral units are autonomous but not sovereign, as sovereignty remains “undivided” and “anchored” with central institutions. This thin line dividing sovereignty and autonomy seems to play a very crucial role in regional states, but not so much in fully-fledged federations, considering that the two concepts — sovereignty and autonomy — are often used indistinctly. By looking at Italy as a case-study and at the interpretations of the concept of autonomy forged by the Italian Constitutional Court, this presentation aims to trace the difference between dual sovereignty and autonomy in federal and quasi-federal systems.

Murphy v. NCAA

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’” In Murphy v. NCAA, the United States Supreme Court held that a federal law that prevents States from legalizing sports gambling “violates the anticommandeering rule.” The Supreme Court’s decision in Murphy reemphasizes a fundamental principle of dual sovereignty—Congress is prohibited from “issu[ing] direct orders to the governments of the States.”

Gamble v. United States: Brief of Amici Curiae Criminal Procedure Professors

Gamble v. United States is an invitation for the Supreme Court to reconsider the rule in double jeopardy law, which permits federal and state authorities to engage in parallel or successive prosecutions of the defendant for the offense. In this amicus brief — in support of petitioner — we urge the Court to abolish the dual sovereignty rule. The argument develops in four parts. First, we show that the rule clashes with the original understanding of the Double Jeopardy Clause, especially in light of its drafting history. Second, we argue that under the Court's own test (reaffirmed as recently as the 2015 term) for determining which sovereigns are, in fact, dual, the sovereignty of the federal government is best understood as derivative of — not separate from — the sovereignty of the states. Third, we explain why every policy rationale behind double jeopardy protection counsels against the dual sovereignty rule, particularly given the existence of other doctrines (most notably, the Blockburger same offense rule) that already limit the scope of double jeopardy protection in practice. Finally, we suggest that the key precedents appearing to bolster the dual sovereignty approach are, on scrutiny, weaker than many have assumed — and in some instances, may not support the rule at all.