Law Commons^™

The Role Of Departments In The Design Of The Federal Government, Jack M. Beermann

Faculty Scholarship

Reviewing Blake Emerson,The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller, 38 Yale J. Reg. 90 (2021)

Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the …

Four Privacy Stories And Two Hard Cases, A Comment On Skinner-Thompson's Privacy At The Margins, Jessica Silbey

Faculty Scholarship

Scott Skinner-Thompson's new book, Privacy at the Margins, is what I would call a "fourth-generation" study of privacy law. Privacy's contours and justifications have been debated over the course of the twentieth century, first to establish it as a matter deserving legal protection (roughly the first half of the twentieth century), ² then to iterate its various common law and constitutional variations (starting in the 1960s), ³ and since the computer and internet revolution of the 1990s, to reevaluate privacy's growing importance but waning presence in the digitally-networked age.⁴ The third-generation of privacy scholarship has been a fast-growing area …

Nondelegation And Originalism, Jack M. Beermann

Faculty Scholarship

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Recovering Feminist Lessons From The Past For A Less Carceral Future, Aziza Ahmed

Faculty Scholarship

In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with …

The Bi-Partisan Enabling Of Presidential Power: A Review Of David Driesen's The Specter Of Dictatorship: Judicial Enabling Of Presidential Power (2021), Jed Handelsman Shugerman

Faculty Scholarship

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.

This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference …