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Articles 1 - 25 of 25
Full-Text Articles in Law
Constraint Through Delegation: The Case Of Executive Control Over Immigration Policy, Cristina M. Rodríguez
Constraint Through Delegation: The Case Of Executive Control Over Immigration Policy, Cristina M. Rodríguez
Duke Law Journal
This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law's core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should …
Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod
Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod
Duke Law Journal
In the United States' system of separation of powers, the judiciary must safeguard the rights of individuals from abuses by the political branches of government. Yet, when it comes to matters touching foreign affairs, scholars such as John Yoo and jurists such as Antonin Scalia argue that the executive branch is entitled to virtually unreviewable discretion. They point to Navy v. Egan for support. There, the Court held that an administrative body that hears appeals from adverse actions against government employees was precluded from reviewing the merits of security clearance determinations because the executive branch deserves "super-strong" deference in foreign …
Environmental Standing: Who Determines The Value Of Other Life?, Francisco Benzoni
Environmental Standing: Who Determines The Value Of Other Life?, Francisco Benzoni
Duke Environmental Law & Policy Forum
No abstract provided.
Standing Up To Legislative Bullies: Separation Of Powers, State Courts And Educational Rights, Sonja Ralston Elder
Standing Up To Legislative Bullies: Separation Of Powers, State Courts And Educational Rights, Sonja Ralston Elder
Duke Law Journal
The separation of powers doctrine creates a strong presumption in favor of judicial deference to legislative policy determinations. This doctrine was developed for federal courts, however, and does not apply with identical force to state courts enforcing state constitutional rights. This Note examines rationales for the separation of powers doctrine and their potential application to state courts. After concluding that deference should be more limited in state courts, it then applies this conclusion to educational rights, which are frequently at risk due to political market failures. By examining case studies of constitutionally based education litigation in seven states, this Note …
Deciding Death, Corinna Barrett Lain
Deciding Death, Corinna Barrett Lain
Duke Law Journal
When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment '' evolving standards of decency '' doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of '' evolving standards '' death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the …
Reining In The Minister Of Justice: Prosecutorial Oversight And The Superseder Power, Abby L. Dennis
Reining In The Minister Of Justice: Prosecutorial Oversight And The Superseder Power, Abby L. Dennis
Duke Law Journal
Virtually immune from judicial sanction, professional discipline, and civil liability, prosecutors enjoy limitless, unmonitored, and, for the most part, unreviewable power. This power and insulation from review invite abuse and public mistrust, shaking confidence in the criminal justice system. With the system in need of a means of curbing errant prosecutors and restoring public confidence, this Note explores a neglected mechanism of prosecutorial oversight-the superseder power-and argues for increased use of this oversight mechanism, coupled with explicit guidelines for its use and a public review process.
Deference, Human Rights And The Federal Courts: The Role Of The Executive In Alien Tort Statute Litigation, Margarita S. Clarens
Deference, Human Rights And The Federal Courts: The Role Of The Executive In Alien Tort Statute Litigation, Margarita S. Clarens
Duke Journal of Comparative & International Law
No abstract provided.
The Rule Of (Administrative) Law In International Law, David Dyzenhaus
The Rule Of (Administrative) Law In International Law, David Dyzenhaus
Law and Contemporary Problems
No abstract provided.
White (House) Lies: Why The Public Must Compel The Courts To Hold The President Accountable For National Security Abuses, Eric K. Yamamoto
White (House) Lies: Why The Public Must Compel The Courts To Hold The President Accountable For National Security Abuses, Eric K. Yamamoto
Law and Contemporary Problems
The warning of a threat to national security has been used throughout US history as a means for the US government to execute repressive actions. Even today, the judiciary must take responsibility for defending citizens against such potential abuses by the executive branch.
The Political Question Doctrine: Suggested Criteria, Jesse H. Choper
The Political Question Doctrine: Suggested Criteria, Jesse H. Choper
Duke Law Journal
Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed-textual commitment-is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these-structural issues: federalism and separation of powers-has been advanced and developed …
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Law and Contemporary Problems
Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court.
California Coastal Commission: Retroactivity Of A Judicial Ruling Of Unconstitutionality, Kristin Grenfell
California Coastal Commission: Retroactivity Of A Judicial Ruling Of Unconstitutionality, Kristin Grenfell
Duke Environmental Law & Policy Forum
No abstract provided.
Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger
Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger
Law and Contemporary Problems
Munger comments on John Ferejohn's recent article in which Ferejohn examines some key issues raised by the exercise of legislative power by the judicial branch. Ferejohn claims that Americans have chosen to accept the judicialization of politics, leaving the courts the option of exercising power inappropriately. Munger argues that while the courts do have power, they forebear from exercising it for long periods of time.
Presidential Management Of The Administrative State: The Not-So-Unitary Executive, Robert V. Percival
Presidential Management Of The Administrative State: The Not-So-Unitary Executive, Robert V. Percival
Duke Law Journal
No abstract provided.
The Vertical Separation Of Powers, Victoria Nourse
The Vertical Separation Of Powers, Victoria Nourse
Duke Law Journal
Standard understandings of the separation of powers begin with the concept of function. Professor Nourse argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the Article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive and political …
Cadenced Power: The Kinetic Constitution, Laura S. Fitzgerald
Cadenced Power: The Kinetic Constitution, Laura S. Fitzgerald
Duke Law Journal
No abstract provided.
Presidents And The Politics Of Structure, Terry M. Moe, Scott A. Wilson
Presidents And The Politics Of Structure, Terry M. Moe, Scott A. Wilson
Law and Contemporary Problems
The presidency is discussed in order to bring it more squarely within the terrain of positive theory by presenting it as a well-developed, nuanced and powerful institution in its own right. Political issues that have a direct bearing on the institutional balance of power are theoretically analyzed.
Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers, John O. Mcginnis
Constitutional Review By The Executive In Foreign Affairs And War Powers: A Consequence Of Rational Choice In The Separation Of Powers, John O. Mcginnis
Law and Contemporary Problems
A model of institutional rational choice is presented to describe the actual practice of the separation of powers, and the model is illuminated by examining the accommodation in the foreign policy and war powers area and the manner in which it reflects the balance of interests among the branches.
“If Angels Were To Govern”: The Need For Pragmatic Formalism In Separation Of Powers Theory, Martin H. Redish, Elizabeth J. Cisar
“If Angels Were To Govern”: The Need For Pragmatic Formalism In Separation Of Powers Theory, Martin H. Redish, Elizabeth J. Cisar
Duke Law Journal
No abstract provided.
Checks Without Balance: Executive Office Oversight Of The Environmental Protection Agency, Robert V. Percival
Checks Without Balance: Executive Office Oversight Of The Environmental Protection Agency, Robert V. Percival
Law and Contemporary Problems
The tension between the rule of law and the politics of regulation reflected in oversight by the Executive Office of the President of the EPA. The presidential use of regulatory review and the congressional responses it has provoked pose new challenges to theories of the impact of separation of powers on federal policymaking.
Heightened Scrutiny Of The Fourth Branch: Separation Of Powers And The Requirement Of Adequate Reasons For Agency Decisions, Sidney A. Shapiro, Richard E. Levy
Heightened Scrutiny Of The Fourth Branch: Separation Of Powers And The Requirement Of Adequate Reasons For Agency Decisions, Sidney A. Shapiro, Richard E. Levy
Duke Law Journal
Judicial review of administrative action is an inexact science. Professors Shapiro and Levy argue that this is partially because review of administrative actions is an unexplained science. In this article, they examine how the evolution of judicial review of agencies has reflected changing political values in American government. They argue that courts now require agencies to provide adequate reasons for their actions, and, by tracing the development of that requirement, they demonstrate that the courts have not fully explained the significance of or doctrinal basis for this model of review. The article concludes that the adequate reasons requirement is best …
The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil
The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil
Duke Law Journal
No abstract provided.
Was There A Baby In The Bathwater? A Comment On The Supreme Court’S Legislative Veto Decision, Peter L. Strauss
Was There A Baby In The Bathwater? A Comment On The Supreme Court’S Legislative Veto Decision, Peter L. Strauss
Duke Law Journal
Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.
Sagebrush And Snowshoes: The Struggle For Natural Resource Control In The United States And Canada, Gretchen E. Nagy
Sagebrush And Snowshoes: The Struggle For Natural Resource Control In The United States And Canada, Gretchen E. Nagy
Law and Contemporary Problems
No abstract provided.
The Separation Of Powers Under Nixon: Reflections On Constitutional Liberties And The Rule Of Law, Peter E. Quint
The Separation Of Powers Under Nixon: Reflections On Constitutional Liberties And The Rule Of Law, Peter E. Quint
Duke Law Journal
No abstract provided.