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Full-Text Articles in Law
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
Sarah L Brinton
The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.
The Senate And The Recess Appointments, David Arkush
The Senate And The Recess Appointments, David Arkush
David J. Arkush
This Essay offers a new perspective on the recess appointments controversy in Noel Canning v. NLRB. First, contrary to the dominant view, the case does not present a conflict between the President and the Senate. The Senate majority likely wished to authorize the President's recess appointments, and the majority is the relevant body for the purpose of establishing Senate intent. Second, the courts should defer to the Senate's wishes rather than define the term "recess" themselves.