Law Commons^™

Who Decides On Liberty?, Thomas P. Crocker

Faculty Publications

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty. Tradeoffs between liberty and security often seem unavoidable. Defenders of unbounded executive power argue that security relies on experts to whom citizens and courts alike must defer. But, if the tradeoff between security and liberty is to be a real weighing of the risks, costs, benefits, burdens, and consequences of various policy decisions, then who has the necessary expertise to decide on liberty? After all, to make decisions about the appropriate balance between security and liberty …

Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival

Faculty Scholarship

No abstract provided.

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …