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Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
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Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public …
The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack
The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack
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Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …
Rethinking The Boundaries Between Public Law And Private Law For The Twenty First Century: An Introduction, Michel Rosenfeld
Rethinking The Boundaries Between Public Law And Private Law For The Twenty First Century: An Introduction, Michel Rosenfeld
Articles
The distinction between public law and private law has been both ever present and unwieldy in civil law as well as in common law jurisdictions. Kelsen found the distinction “useless” for “a general systematization of law,” and Paul Verkuil has remarked that “[i]f the law is a jealous mistress, the public-private distinction is like a dysfunctional spouse. . . . It has been around forever, but it continues to fail as an organizing principle.”