Law Commons^™

Partisanship Creep, Katherine Shaw

Northwestern University Law Review

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron

Scholarly Works

Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …

House Rules: Congress And The Attorney-Client Privilege, David Rapallo

Georgetown Law Faculty Publications and Other Works

In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …

Congress To Judges: We’Re The Boss Of You Now, Joanne Doroshow

Other Publications

No abstract provided.

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

Publications

No abstract provided.

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

Articles in Law Reviews & Other Academic Journals

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

International Trade Relations And The Separation Of Powers Under The United States Constitution, John Linarelli

Scholarly Works

No abstract provided.

Separation Of Powers

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.