Digital Commons Network^™

Disappropriation, Matthew Lawrence

Matthew B. Lawrence

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Ganesh Sitaraman

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

Political Opportunism, Position Taking, And Court-Curbing Legislation., Laura Moyer, Ellen M. Key

Laura Moyer

Although there is extensive scholarship on court-curbing efforts directed at the U.S. Supreme Court, much less is known about bills targeting the lower federal courts. This article argues that members of Congress also engage in position taking with respect to the U.S. Courts of Appeals, by proposing legislation to divide up the Ninth Circuit. Over seven decades, no other circuit has attracted as much court-curbing legislation as the Ninth Circuit, and yet no bill has succeeded. What accounts for this persistent focus on one court? We argue that bill sponsors are motivated primarily by electoral considerations and capitalize on the …

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Donald J. Kochan

Commissioning The Consumer Financial Protection Bureau, Jolina C. Cuaresma

Jolina C. Cuaresma

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias …

Introduction To Constraining The Executive, Tom Campbell

Tom Campbell

On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen

Matthew Steilen

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod

Marah McLeod

This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent …

Who's The Check On Authoritarianism In The Whitehouse?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Presidential Administration In The Obama Era, Jud Mathews

Jud Mathews

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Anthony J. Bellia

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

The Irrepressible Myth Of Klein, Howard M. Wasserman

Howard M Wasserman

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Ansah

Tawia B. Ansah

Explores the separations, constructions, & barriers between law & religion from both a secular & religious perspective. Maintaining boundaries between law & religion often results in the construction of the repudiated religious Other. Creation of a public/private divide is based on an exclusion that functions like what psychoanalysts call abjection. However, the abject (religion) is a latent source of creativity that remains outside the domain of the law but weakens it as the primary site of authority. Removing religion from the sidelines of public juridical dialogue reduces the constraining power of discourse & widens the states discretion. The failure of …

The Power To Control Immigration Is A Core Aspect Of Sovereignty, John C. Eastman

John C. Eastman

The Conflict Of Laws In Armed Conflicts And Wars, John C. Dehn

John C. Dehn

After over thirteen years of continuous armed conflict, neither courts nor scholars are closer to a common understanding of whether, or how, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates the first normative theory regarding the relationship of customary international law to U.S. domestic law that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to better articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law to U.S. law differs in cases …

Bring Back The Legislative Veto: A Proposal For A Constitutional Amendment, Rodney A. Smolla

Rod Smolla

None available.

Deferred Action, Supervised Enforcement Discretion, And The Rule Of Law Basis For Executive Action On Immigration, Anil Kalhan

Anil Kalhan

In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition …

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Schoolhouses, Courthouses, And Statehouses: Educational Finance, Constitutional Structure, And The Separation Of Powers Doctrine, Michael Heise

Michael Heise

No abstract provided.

Twelve Angry Hours: Improving Domestic Violence Holds In Tennessee Without Risk Of Violating The Constitution, Daniel A. Horwitz

Daniel A. Horwitz

How Separation Of Powers Protects Individual Liberties, Cynthia R. Farina

Cynthia R. Farina

No abstract provided.

Cleaning House: Congressional Commissioners For Standards, Josh Chafetz

Josh Chafetz

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all. This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it …

Executive Branch Contempt Of Congress, Josh Chafetz

Josh Chafetz

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed …

Who Speaks For The ‘People’ On Policy?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Interpreting Force Authorization, Scott Sullivan

Scott Sullivan

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Randy J Kozel

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Robert J. Condlin

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Revisiting The Government As Plaintiff, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State. As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing …