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Full-Text Articles in Law
Agency Independence After Pcaob, Kevin M. Stack
Agency Independence After Pcaob, Kevin M. Stack
Vanderbilt Law School Faculty Publications
Separation of powers has a new endeavor. The PCAOB decision makes the validity of good-cause removal protections depend on the separation of adjudicative from policymaking and enforcement functions within the agency. At a minimum, within independent agencies, it preserves the second layer of removal protection only for dedicated adjudicators. But its logic extends further. In PCAOB, the demand for political supervision over rulemaking and enforcement trumped Congress's choice to preserve the independence of officials who perform those roles and also adjudicate. In that way, PCAOB reversed the consistent constitutional validation of good-cause removal protections for those who engage in adjudication. …
Comparative Empiricism And Police Investigative Practices, Christopher Slobogin
Comparative Empiricism And Police Investigative Practices, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …
Assessing The State Of State Constitutionalism, Jim Rossi
Assessing The State Of State Constitutionalism, Jim Rossi
Vanderbilt Law School Faculty Publications
State constitutions are terribly important legal documents, but their interpretation is remarkably understudied (and, of course, highly undertheorized) in the academic literature. This review essay discusses Robert Williams’s welcome new book, The Law of American State Constitutions (Oxford University Press, 2009). After summarizing the content of Williams’s book, it discusses the normative significance of his work, focusing especially on his discussion of independent state constitutions and the positive theory of interpretation he advances. The essay concludes by highlighting some areas where the field of state constitutional law is in need of further advancement, including research that positions state constitutions within …
Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley
Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley
Vanderbilt Law School Faculty Publications
Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …
A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos
A Critical Appraisal Of The Department Of Justice's New Approach To Medical Marijuana, Robert A. Mikos
Vanderbilt Law School Faculty Publications
The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the …
The Four Pillars Of Constitutional Doctrine, Suzanna Sherry
The Four Pillars Of Constitutional Doctrine, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme …