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Full-Text Articles in Law
The Executive Branch Anticanon, Deborah Pearlstein
The Executive Branch Anticanon, Deborah Pearlstein
Articles
Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey
Dickinson Law Review (2017-Present)
It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …
The Untouchable Executive Authority: Trump And The Section 232 Tariffs On Steel And Aluminum, Arim Jenny Kim
The Untouchable Executive Authority: Trump And The Section 232 Tariffs On Steel And Aluminum, Arim Jenny Kim
University of Miami Business Law Review
In 2018, President Trump championed his way through the imposition of the Section 232 Tariffs—a heavy tax on various imports, including steel and aluminum—by broadcasting a supposedly-imminent threat to the U.S. national security. This plea, however, has been criticized as a veil for President Trump’s economic protectionism policy. Meanwhile, others have questioned the constitutionality of the statute creating the President’s authority to impose these tariffs in the first place. This Comment explores the issues arising from President Trump’s Section 232 Tariffs on steel and aluminum: (1) the validity and justiciability of President Trump’s actions under Section 232 of the Trade …
Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock
Legislators On Executive-Branch Boards Are Unconstitutional, Period, Douglas Laycock
William & Mary Bill of Rights Journal
Virginia statute makes legislators categorically “ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.” But with increasing frequency, the General Assembly has enacted exceptions to this policy. There is a general exception for bodies “engaged solely in policy studies or commemorative activities,” and perhaps such bodies need not be in the executive branch at all. But the Assembly has also enacted exceptions for twenty-one specific boards and commissions, many of which clearly have executive authority. This list of exceptions is a miscellany with …
Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux
Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux
Publications
This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.
War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman
War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman
Faculty Scholarship
This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …