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Social Capital In Constitutional Law: The Case Of Private Norm Enforcement Through Prayer At Public Occasions, Paul E. Mcgreal
Social Capital In Constitutional Law: The Case Of Private Norm Enforcement Through Prayer At Public Occasions, Paul E. Mcgreal
Paul E. McGreal
Distinguishing private action from government action is the first question of constitutional law. The distinction blurs most when the government and private actors jointly cause harm. Not surprisingly, then, the Supreme Court’s cases in this gray area have been inconsistent. For example, state court enforcement of a private racially restrictive covenant is government action, but agency placement of a child in a home where the child is abused is private action. The ad hoc nature of these decisions reflects a reluctance to fully embrace joint government-private causation of constitutional harm: Without a limiting principle, doing so would threaten to convert …
In Defense Of Complete Preemption, Paul E. Mcgreal
In Defense Of Complete Preemption, Paul E. Mcgreal
Paul E. McGreal
Recent writings by Professors Gil Seinfeld and Trevor Morrison criticize the Supreme Court's complete preemption doctrine as misguided and unconstitutional, respectively. Professor Seinfeld suggests reforming the doctrine around field preemption, and Professor Morrison rejects complete preemption as inconsistent with separation of powers. This response defends the Supreme Court's doctrine as it currently stands: A state law claim arises under federal law (and so may be removed to federal court) when a federal statute both preempts the claim and supplies an exclusive federal remedy. This doctrine is a sensible application of the well-pleaded complaint rule that prevents improper circumvention of federal …
Counteracting Ambition: Applying Corporate Compliance And Ethics To The Separation Of Powers Threat Of Domestic Surveillance, Paul E. Mcgreal
Counteracting Ambition: Applying Corporate Compliance And Ethics To The Separation Of Powers Threat Of Domestic Surveillance, Paul E. Mcgreal
Paul E. McGreal
When it comes to domestic surveillance, even in the name of foreign intelligence, one constitutional challenge is to balance suspicion of and confidence in executive power - to leave the executive flexibility to meet changing threats, while ensuring that flexibility is not a pretext for abuse. To address this challenge, this Essay draws on expertise from an area of private law: the design, implementation, and operation of corporate compliance and ethics programs. A corporate compliance and ethics program consists of an organization's code of conduct, policies, and procedures that help achieve compliance with relevant laws as well as the organization's …