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Full-Text Articles in Law
The Scope Of Precedent, Randy J. Kozel
The Scope Of Precedent, Randy J. Kozel
Michigan Law Review
The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …
Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg
Presidential Inaction And The Separation Of Powers, Jeffrey A. Love, Arpit K. Garg
Michigan Law Review
Imagine two presidents. The first campaigned on an issue that requires him to expand the role of the federal government-—maybe it was civil rights legislation or stricter sentencing for federal criminals. In contrast, the second president pushes policies—-financial deregulation, perhaps, or drug decriminalization—-that mean less government involvement. Each is elected in a decisive fashion, and each claims a mandate to advance his agenda. The remaining question is what steps each must take to achieve his goals. The answer is clear, and it is surprising. To implement his preferred policies, the first president faces the full gauntlet of checks and balances-—from …
A Pragmatic Republic, If You Can Keep It, William R. Sherman
A Pragmatic Republic, If You Can Keep It, William R. Sherman
Michigan Law Review
These things we know to be true: Our modern administrative state is a leviathan unimaginable by the Founders. It stands on thin constitutional ice, on cracks between the executive, legislative, and judicial branches. It burdens and entangles state and local governments in schemes that threaten federalism. And it presents an irresolvable dilemma regarding democratic accountability and political independence. We know these things to be true because these precepts animate some of the most significant cases and public law scholarship of our time. Underlying our examination of administrative agencies is an assumption that the problems they present would have been bizarre …
Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof
Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof
Michigan Law Review
The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in …