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Articles 31 - 60 of 62
Full-Text Articles in Law
The Orwellian Military Commissions Act Of 2006, Michael C. Dorf
The Orwellian Military Commissions Act Of 2006, Michael C. Dorf
Michael C. Dorf
In three decisions in 2004 and 2006, the Supreme Court of the United States rejected the sweeping claims by President Bush that his role as Commander in Chief entitled him to detain persons indefinitely and, if he chose, to subject them to war crimes trials before military commissions that did not have all of the procedural protections of courts martial. The Court's rulings, however, left open the possibility that, notwithstanding the treaty obligations of the United States under the Geneva Conventions, Congress could authorize the President to take the steps that he could not take unilaterally. In the Military Commissions …
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
Michael C. Dorf
In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would predictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …
An Institutional Approach To Legal Indeterminacy, Michael C. Dorf
An Institutional Approach To Legal Indeterminacy, Michael C. Dorf
Michael C. Dorf
For over a generation, academic jurisprudence and constitutional theory have attempted to reconcile, on the one hand, the rule of law and the Constitution's fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the …
How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The 2011 Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf
How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The 2011 Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf
Michael C. Dorf
The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth …
Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan
Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan
Michael C. Dorf
No abstract provided.
Identity Politics And The Second Amendment, Michael C. Dorf
Identity Politics And The Second Amendment, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf
Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles Frederick Sabel
Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles Frederick Sabel
Michael C. Dorf
Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Frankenstein's Monster Or Spandrel? The Vices And Virtues Of Legal Retrofitting (Program), Michael C. Dorf
Frankenstein's Monster Or Spandrel? The Vices And Virtues Of Legal Retrofitting (Program), Michael C. Dorf
Michael C. Dorf
No abstract provided.
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
Michael C. Dorf
No abstract provided.
The Aspirational Constitution, Michael C. Dorf
Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf
Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf
Michael C. Dorf
If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis …
In Praise Of Justice Blackmun: (Corrected) Typos And All, Michael C. Dorf
In Praise Of Justice Blackmun: (Corrected) Typos And All, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Legal Indeterminacy And Institutional Design, Michael C. Dorf
Legal Indeterminacy And Institutional Design, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Foreword: The Most Confusing Branch, Michael C. Dorf
Foreword: The Most Confusing Branch, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Foreward: The Most Confusing Branch, Michael C. Dorf
Foreward: The Most Confusing Branch, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Michael C. Dorf
In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …
The Good Society, Commerce, And The Rehnquist Court, Michael C. Dorf
The Good Society, Commerce, And The Rehnquist Court, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Incidental Burdens On Fundamental Rights, Michael C. Dorf
Incidental Burdens On Fundamental Rights, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf
Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Equal Protection Incorporation, Michael C. Dorf
Equal Protection Incorporation, Michael C. Dorf
Michael C. Dorf
In order to preserve a broad field of play for legislative and administrative action, courts do not subject most state action to exacting scrutiny under the Equal Protection Clause. For half a century, the principal exception has consisted of so-called suspect and semi-suspect classifications. Although the Supreme Court has articulated criteria for identifying such classifications, standing alone, none of these criteria is satisfactory, nor has the Court found any principled means of combining them. This Article proposes a judicial reading of the Equal Protection Clause, "equal protection incorporation", that roots the process of identifying suspect and semi-suspect classifications in constitutional …
Prediction And The Rule Of Law, Michael C. Dorf
Abortion Rights, Michael C. Dorf
Our Undemocratic Constitution: Where The Constitution Goes Wrong (And How We The People Can Correct It), Michael C. Dorf
Our Undemocratic Constitution: Where The Constitution Goes Wrong (And How We The People Can Correct It), Michael C. Dorf
Michael C. Dorf
No abstract provided.
The Marginality Of Citizens United, Michael C. Dorf
The Marginality Of Citizens United, Michael C. Dorf
Michael C. Dorf
No abstract provided.
What Does The Second Amendment Mean Today?, Michael C. Dorf
What Does The Second Amendment Mean Today?, Michael C. Dorf
Michael C. Dorf
A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators. This Article argues that the Second Amendment has not been …
God And Man In The Yale Dormitories, Michael C. Dorf
God And Man In The Yale Dormitories, Michael C. Dorf
Michael C. Dorf
No abstract provided.
A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel
A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel
Michael C. Dorf
In this Article, Professors Dorf and Sabel identif a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that …
Facial Challenges To State And Federal Statutes, Michael C. Dorf
Facial Challenges To State And Federal Statutes, Michael C. Dorf
Michael C. Dorf
No abstract provided.