Law Commons^™

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Legislative Actions To Promote And Enforce Ethical Conduct In Government, Christine Todd Whitman

Journal of Legislation

No abstract provided.

Challenges Of Leadership In The Twenty-First Century, Leon Panetta

Journal of Legislation

No abstract provided.

Regulating The Political Wild West: State Efforts To Disclose Sources Of Online Political Advertising, Victoria Smith Ekstrand, Ashley Fox

Journal of Legislation

The problem of disinformation in online political advertising is growing, with ongoing and potential threats to campaigns coming from both within and outside the United States. Most scholarship in this area has focused on either disclosures and disclaimers under the proposed Honest Ads Act or other fixes aimed at a gridlocked Federal Election Commission (“FEC”). With federal reform at a standstill, states have jumped into the void. Between the 2016 presidential election and early 2020, eight states passed legislation to expressly regulate online political advertising for state candidates and ballot measures, including Maryland, whose state law was declared unconstitutional as …

State Attorneys General, Political Lawsuits, And Their Collective Voice In The Inter-Institutional Constitutional Dialogue, Mark C. Miller

Journal of Legislation

No abstract provided.

The United States, The International Criminal Court, And The Situation In Afghanistan, Sara L. Ochs

Notre Dame Law Review Reflection

The United States has always had a very complicated and tense relationship with the International Criminal Court (ICC) and with international criminal law generally. Yet, under the Trump administration, the U.S.–ICC relationship has deteriorated to an unprecedented level. Within the last few years, the U.S. government has launched a full-scale attack on the ICC—denouncing its legitimacy, authority, and achievements, blocking investigations, and loudly withdrawing all once-existing support for the court.

These hostilities bubbled over following the November 2017 request by the ICC Chief Prosecutor, Fatou Bensouda, for the court to open an investigation into alleged war crimes and crimes against …

Regulation And The New Politics Of (Energy) Market Entry, David B. Spence

Notre Dame Law Review

This Article examines the dynamics of nongovernmental organization (NGO) opposition to proposed energy infrastructure in the twenty-first century, specifically the tactics and issue arguments used by NGOs to oppose new energy infrastructure. The analysis is built around a data set comprising information more than four hundred NGOs whose missions include active opposition to one or more of nine different types of energy projects, including various types of fossil fuel infrastructure, renewable energy facilities, and smart grid technology.

Part I of this Article explains the legal context in which NGOs may challenge the approval of new energy projects. Siting regulation typically …

Shareholders United?, Andrew K. Jennings

Notre Dame Law Review Reflection

Securities regulation has a way of crossing into other lanes. What public companies do is substantive regulation. How they govern themselves while doing it—or more importantly, how they disclose it—is securities regulation. So it is no surprise that the perennial concern over regulating money in politics should also become a question of federal securities regulation. The Shareholders United Act (the “Act”)—passed by the House of Representatives as part of House Bill 1, an early, major piece of legislation in the 116th Congress—does just that. The Act would require that before engaging in political spending, public companies poll shareholders on how …

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

When Soft Law Meets Hard Politics: Taming The Wild West Of Nonprofit Political Involvement, Lloyd Hitoshi Mayer

Journal of Legislation

Beginning in the 1990s and continuing today, many of the legal and psychological barriers to nonprofits becoming involved in electoral politics have fallen. At the same time, political divisions have sharpened, causing candidates, political parties, and their supporters to scramble more aggressively for any possible edge in winner-take-all political contests. In the face of these developments, many nonprofits have violated the remaining legal rules applicable to their political activity with little fear of negative consequences, especially given vague rules and a paucity of enforcement resources. Such violations include under reporting of political activity in government filings, fly-by-night organizations that exist …

Costs And Challenges Of The Hostile Audience, Frederick Schauer

Notre Dame Law Review

In my own newly famous city of Charlottesville, Virginia, as well as in Berkeley, Boston, Gainesville, Middlebury, and an increasing number of other locations, individuals and groups engaging in constitutionally protected acts of speaking, marching, parading, protesting, rallying, and demonstrating have become targets for often-large groups of often-disruptive counterprotesters. And although most of the contemporary events have involved neo-Nazi, Ku Klux Klan, and other white supremacist speakers who are met with opposition from audiences on the political left, it has not always been so. Indeed, what we now identify as the problem of the hostile audience has often involved more …

No Internet Does Not Mean No Protection Under The Cfaa: Why Voting Machines Should Be Covered Under 18 U.S.C. § 1030, Jack Dahm

Notre Dame Law Review

The U.S. Attorney General established a Cyber-Digital Task Force within the Department of Justice (DOJ) in February 2018. This newly created task force released its first public report on July 19, 2018. Then–Attorney General Jeff Sessions announced the release of the report, while promising that “[a]t the Department of Justice, we take these threats seriously.” The report was designed to answer the following question: “How is the Department [of Justice] responding to cyber threats?” The report begins by discussing the threat of foreign influence operations, described by the Task Force as “one of the most pressing cyber-enabled threats our Nation …

The New Oral Argument: Justices As Advocates, Tonja Jacobi, Matthew Sag

Notre Dame Law Review

No abstract provided.

Splitsylvania: State Secession And What To Do About It, Glenn Harlan Reynolds

Notre Dame Law Review Reflection

Intrastate secession is the true secession fever: not the perennial postelection calls of losing parties to secede from a nation controlled by the opposition, but a growing movement for secession from states, with the rural parts of states (sometimes geographically very large parts of states) wanting to separate from the population-dense urban areas that essentially control state decisionmaking. Feeling ignored, put-upon, and mistreated, secessionists want to take their fate into their own hands. These movements are common, but not likely to succeed on their own, as intrastate secession is, though not entirely unknown (see, e.g., West Virginia), very difficult to …

Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres

Journal of Legislation

No abstract provided.

Challenging Federalism: How The States’ Loud Constitutional Provocation Is Being Met With Silence, Jennifer M. Haidar

Journal of Legislation

No abstract provided.

The Sharing Economy As An Equalizing Economy, John O. Mcginnis

Notre Dame Law Review

Economic equality is often said to be the key problem of our time. But information technology dematerializes the world in ways that are helpful to the ninety-nine percent, because information can be shared. This Article looks at how one fruit of the information revolution—the sharing economy—has important equalizing features on both its supply and demand sides. First, on the supply side, the intermediaries in the sharing economy, like Airbnb and Uber, allow owners of housing and cars to monetize their most important capital assets. The gig aspect of this economy creates spot markets in jobs that have flexible hours and …

There Is A Place For Muslims In America: On Different Understandings Of Neutrality, Mark A. Goldfelder

Notre Dame Law Review Reflection

American neutrality is not about the government making sure religion is not visible or even treated benevolently. The American concept of neutrality just means that the government should not treat religion as special, for better or for worse, simply because it is religion. For example, the Supreme Court has repeatedly held that laws touching religion must have a valid secular purpose, and not serve primarily to advance or inhibit religion. But that does not mean that religion should not be respected. The key to the American conception of religious neutrality lies in the understanding that religion is valuable—despite what strict …

Computationally Assisted Regulatory Participation, Michael A. Livermore, Vladimir Eidelman, Brian Grom

Notre Dame Law Review

With the increased politicization of agency rulemaking and the reduced cost of participating in the notice-and-comment rulemaking process, administrative agencies have, in recent years, found themselves deluged in a flood of public comments. In this Article, we argue that this deluge presents both challenges and opportunities, and we explore how advances in natural language processing technologies can help agencies address the challenges and take advantage of the opportunities created by the recent growth of public participation in the regulatory process. We also examine how scholars of public bureaucracies can use this important new publicly available data to better understand how …

The American Deep State, Jon D. Michaels

Notre Dame Law Review

This Article, written for the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century, considers the notion of bureaucratic depth and what it means in the American context. In what follows, I argue that the American deep state has very little in common with those regimes usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial incentives or caste proclivities to subvert popular will; that demotic bureaucratic depth of the American variety should be celebrated, not feared; …

The Senate Blue-Slip Process As It Bears On Proposals To Split The Ninth Circuit, Wyatt Kozinski

Journal of Legislation

No abstract provided.

Wait, Who Are We Talking About Here? Searching For A Consistent Approach To Applying Rfra To Corporations, Steven J. Harrison

Notre Dame Journal of Law, Ethics & Public Policy

There is perhaps no idea in contemporary American law that is more publicly contentious than that of “corporate personhood.” Of all of the Supreme Court cases dealing with corporations and the corporate entity, few probably thought that a decision could surpass Citizens United in public controversy and divisiveness produced by the decision, which brought the legal fiction of the “corporate person” to the forefront of popular debate and discussion. Then came Burwell v. Hobby Lobby Stores, Inc., which not only addressed whether corporations could “act” in a manner that seemed only a possibility for “real” or “natural” persons, which recalled …

Evaluating Legislative Justice Sector Reforms: Creating An Environment For Survival, Lauren A. Shumate

Journal of Legislation

No abstract provided.

The Politics Of Statutory Interpretation, Margaret H. Lemos

Notre Dame Law Review

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

Banking And The Social Contract, Mehrsa Baradaran

Notre Dame Law Review

This Article asserts that there are three major tenets of the social contract: (1) safety and soundness, (2) consumer protection, and (3) access to credit. Regulators can and should require banks to meet standards in these areas to benefit society even if these measures reasonably reduce bank profits. Implicit in the social contract is the idea that each party must give up something in the exchange. This Article provides policymakers not only the appropriate narrative and justifications needed to frame their regulatory philosophy, but it also provides important textual support from the most prominent acts of banking legislation to give …

The Appointment And Removal Of William J. Marbury And When An Office Vests, Saikrishna Bangalore Prakash

Notre Dame Law Review

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s …