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Law & Politics Is Published Twice Yearly, Fall and Spring TEXAS REVIEW of L AW & POLITICS VoL . 1 FALL 2010 PAGES 1-265 BLEAK PROSPECTS: HOW HEALTH CARE REFORM HAS FAILED IN THE UNITED STATES RichardA. Epstein SOMALI PIRATES: AN EXPANSIVE INTERPRETATION OF HUMAN RIGHTS Amitai Etzioni THE PLENARY POWER DOCTRINE AND THE CONSTITUTIONALITY OF IDEOLOGICAL EXCLUSIONS: AN HISTORICAL PERSPECTIVE Patrick J. Charles WITNESS FOR THE DEFENSE: THE COMPULSORY PROCESS CLAUSE AS A LIMIT ON EXTRATERRITORIAL CRIMINAL JURISDICTION Daniel Huff "THE COURT WILL CLEAN IT UP": CONFRONTING THE SPECTER OF POLITICAL BRANCH DERELICTION OF DUTY Ben Geslison OVERSIGHT, ENFORCEMENT, AND EXTENSION IN PUBLIC-INTEREST LITIGATION: AN EMPIRICAL ANALYSIS OF COMPLIANCE WITH T HE N INT H CIRCUIT'S WESTERN STATES PAVNG V. WASHINGTON STATE DOT D ECISION Robert Luther I . COMPLETING ELY'S REPRESENTATION: REINFORCING THEORY OF JUDICIAL REVIEW BY ACCOUNTING FOR THE CONSTITUTIONAL VALUES OF STATE CITIZENSHIP Shane Pennington HOW HIGH IS TOO HIGH?: JUDICIAL ELECTIONS AND RECUSAL AFTER CAPERTON DanielBetts SUBSCRIBE TO THE TEXAS REVIEW OF LA W & POLITICS The Texas Review of Law & Politics is published twice yearly, fall and spring. To subscribe to the Texas Review of Law & Politics, provide the Review with your name, billing and mailing addresses. via telephone: (512) 232-1380 facsimile: (512) 471-6988 e-mail: <[email protected]> online: <www.trolp.org/commerce/subscription.htm> or standard mail: Texas Review of Law & Politics University of Texas School of Law 727 East Dean Keeton Street Austin, TX 78705-3299 Annual subscription rate: $30.00 (domestic); $35.00 (international). ISSN #1098-4577. REPRINTS It's not too late to get a copy one of your favorite past articles. See the complete list of the Review's past articles at <www.trolp.org>. Reprint orders should be addressed to: William S. Hein & Co., Inc. Hein Building 1285 Main Street Buffalo, NY 14209 TEXAS REVIEW of LAW & POLITICS VOL. 15, No. 1 FALL 2010 PAGES 1-265 ARTICLES BLEAK PROSPECTS: HOW HEALTH CARE REFORM HAS FAILED IN THE UNITED STATES R ichard A. Epstein ................................................................ 1 SOMALI PIRATES: AN EXPANSIVE INTERPRETATION OF HUMAN RIGHTS A m itai Etzioni ...................................................................... 39 THE PLENARY POWER DOCTRINE AND THE CONSTITUTIONALITY OF IDEOLOGICAL EXCLUSIONS: AN HISTORICAL PERSPECTIVE Patrick J. Charles ................................................................ 61 WITNESS FOR THE DEFENSE: THE COMPULSORY PROCESS CLAUSE AS A LIMIT ON EXTRATERRITORIAL CRIMINAL JURISDICTION Daniel Huff............................................................................. 129 "THE COURT WILL CLEAN IT UP": CONFRONTING THE SPECTER OF POLITICAL BRANCH DERELICTION OF DUTY Ben G eslison ........................................................................... 16 5 OVERSIGHT, ENFORCEMENT, AND EXTENSION IN PUBLIC-INTEREST LITIGATION: AN EMPIRICAL ANALYSIS OF COMPLIANCE WITH THE NINTH CIRCUIT'S WESTERN STATES PAVING V. WASHINGTON STATE DOT DECISION Robert Luther III.................................................................... 199 COMPLETING ELY'S REPRESENTATION: REINFORCING THEORY OF JUDICIAL REVIEW BY ACCOUNTING FOR THE CONSTITUTIONAL VALUES OF STATE CITIZENSHIP Shane Pennington.................................................................. 219 HOW HIGH IS Too HIGH?: JUDICIAL ELECTIONS AND RECUSAL AFTER CAPERTON Daniel B etts ............................................................................ 247 4 BOARD OF ADVISORS Hon. Greg Abbott Hon. Royce C. Lamberth Hon. Bob Barr Prof. Gary S. Lawson Mr. Bradley A. Benbrook Prof. Jonathan R. Macey Mr. Clint Bolick Prof. Gregory Maggs Hon. Robert H. Bork Mr. John P. McConnell Prof. Steven G. Calabresi Hon. Edwin Meese III Prof. Thomas J. Campbell Mr. William H. Mellor Hon. T. Kenneth Cribb Jr. Mr. Allan E. Parker Jr. Hon. R. Ted Cruz Mr. Thomas W. Pauken Ms. Susanna Dokupil Prof. Stephen B. Presser Prof. Richard A. Epstein Mr. Keith S. Rabois Prof. Richard W. Garnett Prof. Michael Rappaport Mr. Todd F. Gaziano Mr. Ron Robinson Prof. Lino A. Graglia Mr. M. Sean Royall Hon. C. Boyden Gray Mrs. Phyllis Schlafly Dr. Michael S. Greve Mr. Joseph Smith Hon. Nathan Hecht Mr. Daniel E. Troy Prof. Russell Hittinger Mr. J. Michael Wiggins Mr. Michael J. Horowitz Mr. Richard K. Willard Mr. Peter Huber Hon. Don R. Willett Hon. Edith H. Jones uy BOARD OF DIRECTORS Adam B. Ross, Chairman Andrew A. Adams, Secretary Sean B. Cunningham Eric B. Neuman David J. Damiani Keith S. Rabois Amy Davis Tara B. Ross Dennis W. Donley Jr. Nigel Stark Scott A. Fredricks Brantley D. Starr Benjamin B. Kelly Gary L. Thompson David A. Linehan Philip A. Vickers John R. Martin Douglas R. Wilson Ryan L. Morris STEERING COMMITTEE Brantley Starr, Executive Director Amy Davis Jaimie Feltault Marc Levin John Martin Aaron Streett Articles published in the Review do not necessarily reflect the views of its founders, members, Board of Directors, Steering Committee, or Board of Advisors. The Texas Review of Law & Politics is a conservative law review. Its mission is to be the prime forum for the discussion and debate of contemporary social issues such as crime, federalism, affirmative action, constitutional history, and religious liberties. The Review publishes thoughtful and intellectually rigorous conservative articles-articles that traditional law reviews often fail to publish-that can serve as blueprints for constructive legal reform. The Texas Review of Law & Politics is published two times a year-fall and spring. Annual subscription rates: $30.00 (domestic); $35.00 (international). To subscribe, access the Review's World Wide Web site at <www.trolp.org>, contact the staff at (512) 232-1380, or fax a request to (512) 471-6988. Back issues are available from: William S. Hein & Co., Inc., Hein Building, 1285 Main Street, Buffalo, NY 14209, USA; (800) 457-1986. ISSN #1098-4577. The Review welcomes the submission of articles, book reviews, and notes via standard or electronic mail. All submissions preferably should be submitted in Microsoft Word 2003 format. When submitting a manuscript through standard mail, please include a copy on a compact disk, along with a hard copy, addressed to: Texas Review of Law & Politics, 727 East Dean Keeton Street, Austin, Texas, 78705-3299. When submitting a manuscript electronically, please attach the manuscript to an e-mail message addressed to <[email protected]>. All rights reserved. No part of this journal may be reproduced in any form or by any means, electronic, mechanical, photocopying, scanning, or otherwise, without permission in writing from the Texas Review of Law & Politics, except by a reviewer who may quote brief passages in a review. Notwithstanding the foregoing, the Review is pleased to grant permission for copies of articles, notes, and book reviews to be made for classroom use only, provided that (1) a proper notice of copyright is attached to each copy, (2) the author(s) and source are identified, (3) copies are distributed at or below cost, and (4) the Review is notified of such use. Copyright 2010, Texas Review of Law & Politics s 4 r',r s a u a # 4 a e TEXAS REVIEW of LAW & POLITICS VOL. 15, No.1 FALL 2010 PAGES1-265 Editor in Chief JOHN SCHARBACH Managing Editor MICAH KEGLEY Chief Manuscripts Editor ChiefArticles Editor ZACHARY SNIPE JAMES BUECHELE Technical Editor Executive Editor CAT GARZA NATHAN VASSAR Articles Editors JEREMY CLARE CHRISTOPHER JONES ROBERT DEBELAK JOHN PHILLIPS SHAUNEEN GARRAHAN AMELIA SCHMIDT HARNAGEL KRISTEN WAAGE Associate Editors BRYAN ACKLIN MICHAEL GOLDMAN JOHN MATTOX JILLIAN BALLARD KYLE GRAVES NICOLAS MORRELL AUSTIN CARLSON IAN GROETSCH NICANOR PESINA BENJAMIN CLARK TIMOTHY HOOPER ISRAEL SAENZ RACHEL CUMMINGS PATRICK JOHNSON GARRETT SAKIMAE MATTHEW FISHER JASON JONES JEFFREY SUFFER ERIN GAGE LESLIE LEVY ILANA TANNER EDWARD GARRITY YU YUN LIN JOSHUA YI TONY MCDONALD Legal Counsel FacultyAdvisor PATRICK O'DANIEL LINO A. GRAGLIA Founded by Adam B. Ross & Dennis W. Donley Jr. in MCMXCVI u a a a a a a SUBMISSIONS The Texas Review of Law & Politics welcomes the submission of articles, book reviews, and notes via standard or electronic mail. All submissions should be single-spaced, printed on one side only, with footnotes rather than endnotes. An electronic copy of any accepted manuscript is required. Citations should conform to the Texas Rules of Form (11th ed. 2006) and The Bluebook: A Uniform System of Citation (18th ed. 2005). Except when content suggests otherwise, the Review follows the guidelines set forth in the Texas Law Review Manual on Usage & Style (11th ed. 2009), The Chicago Manual of Style (15th ed. 2003), and Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995). Manuscripts submitted electronically should be sent to: <[email protected]>. Manuscripts submitted via standard mail should be addressed to: Texas Review of Law & Politics The University of Texas School of Law 727 East Dean Keeton Street Austin, Texas 78705-3299 ADVERTISING The Texas Review of Law & Politics is now accepting advertising. We offer the perfect medium to reach a conservative audience interested in contemporary social issues, including crime, federalism, affirmative action, constitutional history, and religious liberties. For more information, please call our offices at (512) 232-1380, fax us at (512) 471-6988, e-mail us at <[email protected]>, or write our Managing Editor at the above address. u P4 4 s 1 PREFACE Academia should provide a forum for free and open discourse. Nonetheless,
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