Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and modes of self-governance reflect nothing more than disagreements within the shared American liberal tradition. That assumption, if it was ever valid, may be no longer. As in other federal states in which subnational “illiberal enclaves” have persisted over time, the United States may be witnessing a replication at the subnational level of what appears to be happening at the national level: a growing chasm along a cleavage between democratic liberalism and illiberal authoritarianism, in which some states remain committed to inherited forms of democratic liberalism while others cling to (or develop, or resurrect) patterns of illiberal authoritarianism. The paper examines both the “large-C” formal constitutions of the states and their “small-c” informal constitutions and behavior for evidence of such a development. The evidence shows that North Carolina and Wisconsin have advanced the farthest down the road to subnational authoritarianism, with Florida, Texas, Kansas, Arizona, and Alabama not far behind. Disturbing initial signs of democratic backsliding may be seen as well in Georgia, Iowa, Michigan, Ohio, Pennsylvania, and Tennessee. Although subnational authoritarianism in the United States is at this point far less severe than that found elsewhere in the world, the evidence suggests considerable cause for concern.
Should arbitrators consider authority—such as statutes or case law—external to the collective bargaining agreement when deciding labor grievances? Do they rely on such external authority? If so, do they do so in particular circumstances or in certain types of cases? To provide more insight on this often-debated issue, we have amassed a new data set of hundreds of labor arbitration awards spanning a decade. In contrast to previous research, we find that the overwhelming majority of awards do not cite to any external authority (statutes, administrative authorities, case law, or secondary sources). Yet, only a small fraction of awards explicitly decline to address a statutory issue or do not address external authority cited by one of the parties and mentioned in the award. Other significant findings: one or both parties being represented by an attorney in the arbitration hearing correlates with citation to external authority. Instances where arbitrators are drawn from the American Arbitration Association or the Federal Mediation and Conciliation Service rosters result in a greater likelihood of citation to authority than when arbitrators are selected without aid of a service provider. Awards addressing claims asserting a breach of a just-cause provision are more likely than other types of contractual claims to cite to external authority. Our new data set differs from prior data sets in that it includes published and unpublished awards and cases decided by industrial boards, enabling broader study of differing types of labor arbitration.
Defamation cases often arise out of intemperate or offensive statements made in political campaigns. These comments may refer to a candidate’s criminal history, familial conduct, or other matters. Whatever the subject, emotions undoubtedly run high during hotly contested campaigns. However, First Amendment protection is at its zenith when speakers engage in political speech, and speech about political candidates is inherently political speech. Thus, defamation suits arising out of political campaigns face significant hurdles, including (1) anti-SLAPP statutes and a greater public awareness of SLAPP suits; (2) a history and tradition of mudslinging and enhanced protection of political speech during political campaigns; and (3) the first-amendment-inspired doctrine of rhetorical hyperbole. This Article addresses these three obstacles.
The Supreme Court’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. overruled the United States Court of Appeals for the Federal Circuit’s longstanding Seagate test and empowered district courts to exercise their discretion in deciding whether to enhance damages for willful patent infringement. In the three years since the Halo decision, district courts have developed their own approaches to addressing willfulness allegations at the various stages of litigation, including pleading, summary judgment, trial, and post-trial. This Article observes trends in how district courts have addressed willfulness claims at each stage of litigation, highlights factors courts have considered when declining to enhance damages for an infringer’s egregious misconduct, and identifies practice tips in view of the emerging trends in the case law. This article is available in American University Law Review: https://digitalcommons.wcl.american.edu/aulr/vol69/ iss4/2
