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Selected Works

Selected Works

2011

Constitutional Law

Articles 121 - 123 of 123

Full-Text Articles in Law

When Originalism Attacks: How Justice Scalia's Resort To Original Expected Application In Crawford V. Washington Came Back To Bite Him In Michigan V. Bryant (Forthcoming In 59 Drake L Rev ___ (Symposium Issue)(Summer 2011)), Brendan T. Beery Dec 2010

When Originalism Attacks: How Justice Scalia's Resort To Original Expected Application In Crawford V. Washington Came Back To Bite Him In Michigan V. Bryant (Forthcoming In 59 Drake L Rev ___ (Symposium Issue)(Summer 2011)), Brendan T. Beery

Brendan T Beery

Justice Scalia personifies the philosophical anxieties that lead judges to adopt species of textualist and originalist methods that anchor meaning to centuries past and to surface meaning. The resulting constitutional rules are so narrow that they are impossible to apply without producing absurd results. Thus, Justice Scalia’s brand of originalism and textualism, which are effectuated by embedding original expected application in the Court’s precedents and willfully ignoring semantic depth, invite future courts to manifest the kind of intellectual dishonesty and contortionism exemplified by the Court’s recent opinion in Michigan v. Bryant. This Article explores that case and, more broadly, the …

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Rational Treaties: Article Ii, Congressional-Executive Agreements, And International Bargaining, John C. Yoo Dec 2010

Rational Treaties: Article Ii, Congressional-Executive Agreements, And International Bargaining, John C. Yoo

John C Yoo

This paper examines the continuing difference between the Constitution’s Article II treaty, and the congressional-executive agreement’s statutory process, to make international agreements. Rather than approach the problem from a textual or historical perspective, it employs a rational choice model of dispute resolution between nation-states in conditions of weak to little enforcement by supranational institutions. It argues that the choice of a treaty or congressional-executive agreement can make an important difference in overcoming various difficulties in bargaining that arise from imperfect information and commitment problems.

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Negotiating Federalism, Erin Ryan Dec 2010

Negotiating Federalism, Erin Ryan

Erin Ryan

Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that dominates political discourse and judicial doctrine, it demonstrates that the boundary between state and federal power is negotiated on scales large and small, on an ongoing basis. The Article is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap. The Article begins by situating its inquiry within the central federalism …

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