Gilpatrick, Breanne, Harvard Journal of Law & Public Policy
The discussions surrounding the 2012 presidential election have reinforced the view that America's fiscal crisis will continue to dominate political discourse for the next several years. Slow economic growth, high unemployment, and general fiscal instability already have forced both federal and state governments to take aggressive actions to balance budgets and manage costs, with tougher measures likely needed going forward. As this reality dawns, the Journal asked several legal scholars to examine the role of law in this "Age of Austerity."
Professor David Schizer opens the issue by outlining some of the many challenges to reforming federal fiscal policy to address the current economic challenges. Next, Mr. Charles Cooper and Mr. Vincent Colatriano contend that recent judicial developments over the last two decades strengthen the argument that the Treasury has the regulatory authority to "index" capital gains to reflect inflation, increasing the value of longterm investments and boosting the overall economy. Next, Virginia Attorney General Kenneth Cuccinelli, Virginia Solicitor General E. Duncan Getchell, Jr., and Virginia Deputy Attorney General Wesley Russell, Jr., explain why public sector pensions will become a litigation flashpoint as local governments struggle to balance budget deficits and rising pension costs. Then, our next two Essays examine state attempts to address pressing national issues: The "War on Drugs" and immigration. Professor David Kopel and Mr. Trevor Burrus outline several reforms the Colorado legislature has passed to lower the fiscal costs of the War on Drugs. And Professor John Eastman examines the legal underpinnings of recent laws passed in Arizona and Alabama to control the economic costs of illegal immigration. Finally, Professor Ernest Young identifies one possible silver lining for states in an Age of Austerity: a shifting Supreme Court approach to state sovereign immunity law.
In this issue we also bring you four Essays from the Journal's Symposium on judicial independence held last Spring. These authors explore the historical foundations for judicial independence and consider whether recent debates about judicial independence should prompt a reconsideration of our judicial selection process--two particularly salient topics in light of the 2010 Iowa retention election in which voters ousted three judges just months after a unanimous decision that legalized same-sex marriage in the state. …