Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Michigan Law School (4)
- University of Pennsylvania Carey Law School (4)
- Boston University School of Law (3)
- American University Washington College of Law (2)
- Cedarville University (2)
-
- Georgetown University Law Center (2)
- Maurer School of Law: Indiana University (2)
- Notre Dame Law School (2)
- St. John's University School of Law (2)
- Chapman University (1)
- Columbia Law School (1)
- Cornell University Law School (1)
- Roger Williams University (1)
- Syracuse University (1)
- University of Baltimore Law (1)
- University of Colorado Law School (1)
- University of Florida Levin College of Law (1)
- University of Pittsburgh School of Law (1)
- Washington and Lee University School of Law (1)
- Western Kentucky University (1)
- William & Mary Law School (1)
- Keyword
-
- Regulation (5)
- Congress (4)
- Constitution (4)
- Executive branch (4)
- Federal agencies (4)
-
- Federalism (4)
- Authority (3)
- Executive power (3)
- President (3)
- Religion (3)
- Rulemaking (3)
- Agency interpretations (2)
- Barnette (2)
- Bureaucracy (2)
- Bush Administration (2)
- Chevron v. Natural Resources Defense Council (2)
- Conscience (2)
- Constitutional interpretation (2)
- Decision making (2)
- Deference (2)
- Detention (2)
- Enemy combatants (2)
- Environmental Protection Agency (2)
- Federal regulations (2)
- First amendment (2)
- Gobitis (2)
- Habeas corpus (2)
- International law (2)
- Jehovah's witness (2)
- Legislative intent (2)
- Publication
-
- All Faculty Scholarship (5)
- Articles (4)
- Faculty Scholarship (4)
- Faculty Publications (3)
- Articles by Maurer Faculty (2)
-
- Articles in Law Reviews & Other Academic Journals (2)
- Georgetown Law Faculty Publications and Other Works (2)
- History and Government Faculty Publications (2)
- Journal Articles (2)
- College of Law - Law Library Staff Scholarship (1)
- Cornell Law Faculty Publications (1)
- Law Faculty News Articles, Editorials, and Blogs (1)
- Law Faculty Scholarship (1)
- Other Publications (1)
- Publications (1)
- SCL Faculty and Staff Publications (1)
- Scholarly Articles (1)
- UF Law Faculty Publications (1)
Articles 1 - 30 of 35
Full-Text Articles in Law
Now He Belong To The Ages: Memorializing Abraham Lincoln, Jonathan Jeffrey
Now He Belong To The Ages: Memorializing Abraham Lincoln, Jonathan Jeffrey
SCL Faculty and Staff Publications
Reviled by many of his fellow Kentuckians while he was president, Abraham Lincoln became Kentucky’s, and America’s, idol during the 20th century. The Commonwealth is home to a growing list of notable Lincoln memorials. This article examines the history and folklore surrounding a number of these monuments.
Designing Transparency: The 9/11 Commission And Institutional Form, Mark Fenster
Designing Transparency: The 9/11 Commission And Institutional Form, Mark Fenster
UF Law Faculty Publications
Surpassing the low expectations established by previous investigatory commissions and overcoming the political and legal obstacles created by the Bush administration's opposition to its creation, the 9/11 Commission accomplished what appeared to be the impossible: an authoritative investigation, a widely-read final report, and direct influence on significant legislation. This Article argues that the 9/11 Commission represents an important institutional model for encouraging or forcing the Executive Branch to disclose information about an especially significant and controversial past event or future decision. It suggests that Congress or the President consider establishing such commissions when information held by the Executive Branch can …
Citizen Mccain, Michael I. Meyerson
Campaign 2008: The Critical Issues, Kevin F. Sims
Campaign 2008: The Critical Issues, Kevin F. Sims
History and Government Faculty Publications
No abstract provided.
From George To George: Path To The Presidency, Thomas S. Mach
From George To George: Path To The Presidency, Thomas S. Mach
History and Government Faculty Publications
No abstract provided.
What Lurks Beneath: Nsa Surveillance And Executive Power Symposium: The Role Of The President In The Twenty-First Century, Gary S. Lawson
What Lurks Beneath: Nsa Surveillance And Executive Power Symposium: The Role Of The President In The Twenty-First Century, Gary S. Lawson
Faculty Scholarship
It is not surprising that, nearly two and a quarter centuries after ratification of the Federal Constitution, people are still actively arguing about the extent of the American President's powers.' The concept of executive power is notoriously murky,2 so disputes about its scope and character are virtually unavoidable. It is, however, at least a tad surprising that, nearly two and a quarter centuries after ratification of the Federal Constitution, people are still arguing about the constitutional sources of presidential power. 3 It is one thing to disagree about how far the President's power extends, but it is quite another thing …
True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies
True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies
Law Faculty Scholarship
Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by …
May The President Appropriately Invoke God? Evaluating The Embryonic Stem Cell Vetoes, Samuel W. Calhoun
May The President Appropriately Invoke God? Evaluating The Embryonic Stem Cell Vetoes, Samuel W. Calhoun
Scholarly Articles
President George W. Bush twice vetoed measures to provide federal funds for embryonic stem cell research requiring the destruction of human embryos. Each veto was premised in part upon his religious beliefs. President Bush’s reliance upon his faith provoked a strong negative reaction. This essay argues that this criticism is baseless.
The essay demonstrates that important political leaders spanning three centuries— including Thomas Jefferson, Abraham Lincoln, and Martin Luther King Jr.—have invoked religious beliefs in explaining their positions. The principle of “separation of church and state,” properly understood, is not a persuasive basis for criticizing this religious heritage. President Bush, …
Watergate And The Resignation Of Richard Nixon: Impact Of A Constitutional Crisis (Book Review), Robert J. Weiner Jr.
Watergate And The Resignation Of Richard Nixon: Impact Of A Constitutional Crisis (Book Review), Robert J. Weiner Jr.
College of Law - Law Library Staff Scholarship
No abstract provided.
A Presumption Against Agency Preemption, Nina A. Mendelson
A Presumption Against Agency Preemption, Nina A. Mendelson
Articles
Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …
Legacy Of The Clinton Bubble, Timothy Canova
Legacy Of The Clinton Bubble, Timothy Canova
Law Faculty News Articles, Editorials, and Blogs
This article looks at the economy following the Clinton administration period in the White House.
Strange Bedfellows, David M. Uhlmann
Strange Bedfellows, David M. Uhlmann
Articles
Environmental protection has not been a priority for the Bush administration, but, contrary to popular perception, criminal prosecution of companies and officials accused of breaking environmental laws has flourished.
A Running Start: Getting “Law Ready” During A Presidential Transition, James E. Baker
A Running Start: Getting “Law Ready” During A Presidential Transition, James E. Baker
Georgetown Law Faculty Publications and Other Works
We are headed for our first wartime Presidential transition in forty years. The good news is that this has prompted uncommon attention to the process of transition. The bad news is that transitions are difficult in the best of circumstances; forewarned does not always equal prepared. The United States handles transitions well on a strategic level. Strategic continuity is found in the Constitution. Transition is also part of the rhythm of government. The intelligence community, for example, has a sound tradition of briefing candidates and Presidents-elect. However, there is tactical vulnerability. An outgoing administration may hesitate to initiate all but …
The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker
The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker
Georgetown Law Faculty Publications and Other Works
The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental …
Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin
Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin
Other Publications
The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …
Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii
Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii
All Faculty Scholarship
Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Journal Articles
In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ.
Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural …
Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward
Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward
Journal Articles
This Article considers the constitutionality and propriety of recent appropriations riders passed by the House of Representatives in response to controversial federal court rulings. The riders prohibit the use of any federal funds for the enforcement of court orders issued in specified cases. These enforcement-blocking provisions raise significant separation-of-powers concerns as between Congress and both coordinate branches of the federal government.
The Article begins by looking at the controversial First Amendment rulings that triggered the enforcement-blocking riders, and the Congressional debates over the proper way to respond to the rulings. The riders are not merely symbolic protests, but could have …
Three Narratives Of Medellín V. Texas, Margaret E. Mcguiness
Three Narratives Of Medellín V. Texas, Margaret E. Mcguiness
Faculty Publications
(Excerpt)
Every once in a while, a Supreme Court case comes along that holds a mirror up to the changing face of the American polity. Medellín v. Texas (Medellín II) is such a case, reflecting divisive national debates over immigration, the death penalty, victims' rights, the scope of executive power, U.S. adherence to international human rights standards, the salience of international law to national security, and the appropriate role of judicial review of political decisions. Which of those issues stands out among the reflected images depends on who is peering into the mirror.
For international law scholars, the significance of …
Mccain Vs. Obama On Environment, Energy, And Resources, Michael B. Gerrard
Mccain Vs. Obama On Environment, Energy, And Resources, Michael B. Gerrard
Faculty Scholarship
For the first time in living memory, the environment is receiving significant attention in a presidential election. Both Senator John McCain (R-AZ) and Senator Barack Obama (D-IL) have given speeches and run television advertisements on the issue and (after a slow start) are being asked questions by the national press about where they stand on climate change and energy.
This article compares the actions and positions of the two candidates on environmental, energy, and resources issues. It begins by looking at their voting records, presents their endorsements and campaign contributions, and then discusses their positions as shown in their campaign …
Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel
Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel
Articles
The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration's constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration's starting point - that the President has exclusive authority over battlefield operations.
This article challenges that assumption. It argues that …
Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Gregory S. Parks, Jeffrey J. Rachlinski, Richard A. Epstein
Debate, Implicit Race Bias And The 2008 Presidential Election: Much Ado About Nothing?, Gregory S. Parks, Jeffrey J. Rachlinski, Richard A. Epstein
Cornell Law Faculty Publications
The election of Barack Obama marks a significant milestone for race relations in our nation—on this much our debaters agree. The meaning of this milestone for the future of race-based policies, such as affirmative action and antidiscrimination laws, is where they disagree. Dr. Gregory Parks and Professor Jeffrey Rachlinski argue that any announcement of the arrival of a “post-racial America” is premature, as the presidential campaign actually revealed an implicit racial bias present in “most white adult brains.” The stereotypical criticisms of Obama, explicit racial references by supporters of opposing candidates, and “deeply racially stratified voting” were, in fact, “reflection[s] …
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson
Articles
Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …
Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis
Not-So-Independent Agencies: Party Polarization And The Limits Of Institutional Design, Neal Devins, David E. Lewis
Faculty Publications
No abstract provided.
Much Ado About Nothing?, Cary Coglianese
Much Ado About Nothing?, Cary Coglianese
All Faculty Scholarship
Policy scholars and decision makers should be careful before concluding that President Bush's recent Executive Order 13422 will result in "paralysis by analysis." That lament has been heard about other changes to rule making procedures over the last seven decades, yet steady increases in the cost and volume of federal regulations during that time period clearly indicate that paralysis has yet to set in. Administrative procedures are embedded within a complex web of politics, institutions, and organizational behavior. Within that web, procedures are but one factor influencing government agencies.
The Managerial Turn In Environmental Policy, Cary Coglianese
The Managerial Turn In Environmental Policy, Cary Coglianese
All Faculty Scholarship
No abstract provided.
The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese
The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese
All Faculty Scholarship
In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response …
Undercover Power: Examining The Role Of The Executive Branch In Determining The Meaning And Scope Of School Integration Jurisprudence, Lia Epperson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun
The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun
Publications
The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.
Return To Missouri V. Holland: Symposium Foreword, Margaret E. Mcguiness
Return To Missouri V. Holland: Symposium Foreword, Margaret E. Mcguiness
Faculty Publications
(Excerpt)
Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement …