Volume 157, Issue 2 
December 2008
Articles

Immigration Law’s Organizing Principles

Adam B. Cox

In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.


Saving Lives Through Administrative Law and Economics

John D. Graham

In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to regulation informed by the main alternatives to BCA. Using his first-hand experience as the Administrator of the Office of Information and Regulatory Affairs (OIRA), Graham suggests that, despite its reputation for antiregulatory bias, BCA is actually an influential tool for protecting or advancing valuable lifesaving regulations. But the Article also pinpoints problems in the “benefit-cost” state, and identifies opportunities for improvement in the process of lifesaving regulation. Graham concludes by suggesting that innovations in analytic practice that would strengthen the efficiency and fairness of federal lifesaving regulation.


Laboratories Of Destitution: Democratic Experimentalism And The Failure Of Antipoverty Law

David A. Super

Democratic experimentalism, the procedural component of the “new governance” movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems.

Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law—decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights—all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. Those same features prevented the country from acting on the widely shared concern about poverty in Katrina’s wake. Indeed, almost all progress in antipoverty law has come from centralized, nonparticipatory, and non-experimentalist policy-making.

Democratic experimentalism assumes consensus on the nature of problems and the propriety of government action, reliable metrics for measuring success, the luxury of time, the lack of situations requiring centralized policymaking, and deliberation that is costless in most respects. It also requires that one side risk political capital to establish an experimentalist system. These assumptions have not been fulfilled in antipoverty law. Little suggests that they will be met in other fields either.

Further progress in antipoverty law must come from centralized policymaking based on substantive consensus among many, though not all, liberals and conservatives. This consensus will follow many substantive components of the new governance, including reliance on market incentives. Democratic experimentalism should learn from debates about deliberative democratic theory that have wrestled with its key weaknesses


Comments

Federal Hate Crime Laws and United States v. Lopez: On A Collision Course To Clarify Jurisdictional-Element Analysis

Christopher DiPompeo

Rather than overrule the previous sixty years of Commerce Clause cases, Lopez reinterpreted many of the earlier cases to make them fit within its new framework. While Lopez was a surprising shift in Commerce Clause doctrine at the time of the Court’s decision, two major subsequent cases, United States v. Morrison and Gonzales v. Raich, have reinforced the Lopez framework and continued the effort to pull back on what the Court has seen as the increasing federalization of control over traditionally local activities. Since 1995, federal courts have been more willing to strike down federal laws as exceeding Congress’s power under the Commerce Clause, particularly those laws that have dealt with non-economic criminal activities.


Mapping The Limits Of Repatriable Cultural Heritage: A Case Study Of Stolen Flemish Art In French Museums

Paige S. Goodwin

This Comment explores the current legal paradox that allows for the repatriation of art taken during World War II while maintaining stolen Flemish art in the Louvre for eternity. Part I discusses the Napoleonic revolution and the creation of French museums relying on stolen European masterpieces for their collections. Even though the Second Treaty of Paris required some restitution of Italian and Austrian art, Flemish art taken by French troops remained in France even after peace was declared. Part II analyzes the development of the law of restitution from Roman prize law through World War II and presents examples of how nations today attempt formal and informal repatriation claims. Part III presents an argument for why France should return Flemish art to Belgium and describes what legal routes Belgium might take to retrieve its works of art.


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