Law Commons^™

Congressional Cybersecurity Oversight: Who’S Who And How It Works, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Cybersecurity remains perhaps the greatest challenge to the economic and physical well being of governments, individuals, and business worldwide. During recent months the United States has witnessed many disruptive and expensive cyber breaches. No single U.S. governmental agency or congressional committee maintains primary responsibility for the numerous issues related to cybersecurity. Good oversight stands at the core of good government. Oversight is Congress’s way of making sure that the administration is carrying out federal law in the way Congress intended. So many aspects of cybersecurity have the potential for use by: terrorists; by foreign entities as a tool to conduct …

"Roads? Where We're Going We Don't Need Roads:" The Transformation Of The Roadless Rule Into An American Carbon Sink, Sam W. Gieryn

Sam W. Gieryn

Abstract “Roads? Where We’re Going, We Don’t Need Roads:” The Transformation of the Roadless Rule into an American Carbon Sink. By: Sam Gieryn Climate change continues to become a global problem, but for the United States, part of the solution is closer than we think. In the search for an effective means to halt the adverse effects of global warming, scientists discovered the benefits of carbon sequestration from forests. The United States contains nearly 750 million acres of forest, which this paper proposes the nation uses to combat climate change. In 2001, the Clinton Administration took notice of the importance …

Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser

Mark Strasser

Family law is often cited as a paradigmatic example of state law, and the Supreme Court has often trumpeted the “domestic relations exception” as a justification for preventing federal involvement in family matters. Yet, it is of course true that a variety of federal programs affect the family, so it is important to figure out which areas are reserved for the states and which are not. Further, the federal courts have heard a variety of cases involving family matters, so it is not as if the courts never have jurisdiction to hear such cases. The tests for determining when the …

Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva

Philip J. Candreva

Nearly every year Congress fails to pass all of the appropriations acts before the start of the federal fiscal year. This necessitates the passage of a temporary spending measure – a continuing resolution – or there will be at least a partial government shutdown. Both contingencies are costly and disruptive to the efficient and effective operation of government. Over the last 30 years, there have been several legislative proposals to enact an automatic continuing resolution mechanism that would mitigate the costs to public management. Such proposals, however, are costly for political and legal reasons. This article examines the arguments for …

Can Super-Committees Cure Congressional Gridlock?, Sean J. Wright

Sean J Wright

No abstract provided.

Overcoming The Unfortunate Legacy Of Haditha, The Stryker Brigade “Kill Team”, And Pantano: Establishing More Effective War Crimes Accountability By The United States, Alan F. Williams

Alan F. Williams

In the years since September 11, 2001 U.S. personnel have been implicated in many incidents involving possible war crimes as defined by the Geneva Conventions. The author critically examines the current U.S approach to handling war crimes and concludes that the process is fundamentally flawed and has repeatedly produced unjust outcomes, particularly in a series of high profile cases that have greatly damaged the position of the U.S. in the international community. The author concludes that not only has the U.S. lost the respect of the international community, but has also simultaneously increased the likelihood that U.S. personnel who serve …

Congressional Inquiry And The Federal Criminal Law, Richard Broughton

Richard Broughton

Federal criminal law has become so far-reaching that scholars and commentators on both the political left and political right have joined forces to demand serious reforms related to defining, prosecuting, and punishing federal crimes. This Article makes the case for greater attention to, and use of, congressional inquiry powers – investigation and oversight – to constrain the massive federal criminal law regime. This Article first identifies, through existing law and scholarship, some of the problems of the federal regime, including over-federalization, anemic limits on prosecutorial power, and the ordinary politics that contribute to these problems. Using the 2009 and 2010 …

The Rise And Permanence Of Quasi-Legislative Independent Commissions, Gabriel Gillett, Steven R. Ross, Raphael A. Prober

Gabriel Gillett

This article explores Congress’s recent trend of creating quasi-legislative independent commissions to augment its own investigations, and determines what factors may enhance the chance that a commission will prove successful. Although Congress has never been the lone forum for investigations, since 2001 the legislature has been empanelling entities of outside experts to investigate the most significant economic and national security issues. This Article begins with a history of governmental investigations in America, highlighting activity by Congress, independent agencies, and presidential commissions. Next, it describes the modern political, communications, and scheduling strains on Congress that have created an opportunity for new …

Why Is Small Business The Chief Business Of Congress?, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small business is a sacred cow in America. In 1958, Congress created the Small Business Investment Company ("SBIC"), a unique public-private program that provides long-term capital to small entrepreneurs. From its inception, however, the SBIC has been plagued by inefficiency and failure. Yet, Congress continues to pour millions of dollars into the SBIC program, with no end in sight. What explains this failed policy course?

This article argues that the SBIC program exemplifies the pitfalls of legal and political institutional path dependency and should be replaced by private institutional lending system. Pursuant to this account, past decisions can influence future …

Congress's Inability To Solve Standing Problems, Heather Elliott

Heather Elliott

Critics of the Supreme Court’s Article III standing doctrine—“a word game played by secret rules” that restricts access to the federal courts—have fruitlessly suggested a variety of ways that the Court might itself fix the doctrine. Some have instead argued that Congress could solve the standing problem in various ways. No one has undertaken a systematic examination of Congress’s options; this Article fills that gap. Congress has three main courses of action. First, Congress may find, by statute, that certain classes of individuals have standing, in an effort to force the Court to accept those individuals as plaintiffs. The Court, …

Running For Cover: The Brac Commission As A Model For Spending Reform, Jerry Brito

Jerry Brito

With record spending and deficits come calls for reform. Spending reform, however, is easier said than done, and independent commissions are often suggested as a way to tackle intractable political problems. Not all commissions are created the same, however. While baseball and basketball both employ balls, they are entirely different animals. The same applies to congressionally created commissions. The Base Realignment and Closing (BRAC) commissions of the late 80s and early 90s were successful because of their peculiar structure—not simply because they were independent commissions. In this Article we first look at the roots of BRAC’s success and then compare …

Cleaning Up Bankruptcy: Limiting The Dischargeability Of Environmental Cleanup Costs, Sonali P. Chitre

Sonali P Chitre

This article reconciles the joint aims of environmental and bankruptcy law after Judge Posner’s myopic opinion in the Seventh Circuit’s resolution of U.S. v. Apex Oil. These two areas of law represent alternative means to the same end—the equitable distribution of limited resources—and share equity’s traditional emphasis of function over form. Ignoring these principles, Judge Posner ruled in Apex that a cleanup order constitutes a dischargeable “claim” when styled as a legal judgment but not when styled as an equitable injunction. This despite the fact that in either case the liability amounts to the same thing-payment must be made for …

Crude Defenses? Liability Limits For Offshore Drilling Accidents And Oil Spills, Richard Faulk

Richard Faulk

All those who participate in realizing the benefits of exploration – including those who use the resulting products and depend on their safe handling to avoid harm – are subject to their dangers. When the risks are enormous, and when society’s demands are extraordinary, the situation is ripe for political compromise. The products of that compromise may not be popular at this time of crisis, but that does not lessen their importance as anchors of reason during difficult times. The Limitation Act and the OPA, as well as the procedures under Supplemental Rule F, form a foundation that enables the …

Stretching The Boom? Limiting Liability For Offshore Drilling Disasters, Richard Faulk

Richard Faulk

Offshore drilling is a tremendously complicated and potentially lucrative process. Unfortunately, it is also dangerous. Harvesters of fossil fuels face massive risks, not only to their lives and properties, but also to our environment and the livelihoods of all those who depend upon it. On balance, our “modern” sense of justice might insist that those who realize wealth should bear the risks that their exploration and production poses to others. But when a product, like petroleum, is inextricably woven into our national fabric, legislators sometimes reach surprising compromises. So, it seems, the owner of the Deepwater Horizon will argue in …

“I Am A Bit Sickened”: Examining Archetypes Of Congressional War Crimes Oversight After My Lai And Abu Ghraib, Samuel L. Brenner

Samuel L Brenner

Following both the My Lai massacre during the Vietnam conflict and the Abu Ghraib prisoner abuse scandal during the Iraq War, many senators and representatives reacted in certain predictable ways by condemning atrocities and expressing horror or disgust at the evidence they had seen. At the same time, some of those same legislators denied that American forces had been involved with atrocities, attempted to foist blame on the victims or on a “small number” of bad soldiers, or suggested that examining American atrocities would be dangerous for American servicemen and for the United States generally. What is most startling about …

Congress’S Right To Counsel In Intelligence Oversight, Kathleen Clark

Kathleen Clark

This article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice-Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained …

Trust Or Profit: How Military Officers Are Bound By The Constitution, Michael C. Mcnerney

Michael C McNerney

This paper examines the ability of reserve and active duty military officers to serve in certain political offices, such as Congress and the Electoral College. The seminal case on this issue, U.S. v. Lane, dealt with a U.S. senator who served as a reserve military judge. In deciding the case, the Court of Appeals for the Armed Forces only stated that a member of Congress may not also serve as a judge, but did not reach the ultimate issue of concurrent military service. This paper will attempt to show in exactly which political offices military officers may serve. In making …

Trust Or Profit: How Both Active Duty And Reserve Military Officers Are Bound By The Constitution, Michael C. Mcnerney

Michael C McNerney

This Comment examines the constitutional barriers that constrain military officers from holding certain public offices. Included is an examination of the Emoluments Clause, Incompatability Clause, and several seminal cases.

Against Gridlock: The Viability Of Interest-Based Legislative Negotiation, Gregory Brazeal

Gregory Brazeal

Early evaluations of the Obama administration have often focused on the administration’s legislative negotiation strategies. But these discussions have largely neglected the distinction between two basic types of negotiation recognized in the professional negotiation literature: positional (or hard-bargaining) negotiation, and interest-based (or principled) negotiation. The former attempts to secure the maximum share of a fixed amount of value by adopting an extreme position, knowing that it will not be accepted, and then using a combination of guile, bluffing, and brinksmanship to cede as little as possible before reaching a deal. The latter, which President Obama has practiced since at least …

Courts & Congress: America's Unwritten Constitution, Charles D. Kelso

charles D. Kelso

This review presents a concise summary of the contents of the book, and suggests an analysis of judicial decisionmaking within which to view Professor Quirk’s work.

The Congressional Chaplaincies, Christopher C. Lund

Christopher C Lund

Twenty five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not “an ‘establishment’ of religion or a step toward establishment,” but instead were “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history.

The Court in Marsh looked only briefly at the history of the chaplaincies. But a deeper look at that history …

Legislative Officer Succession: Part I, Seth Barrett Tillman

Seth Barrett Tillman

A trilogy of highly influential and frequently cited articles published by Professors Akhil Reed Amar, Vikram David Amar, John F. Manning, and Steven G. Calabresi in the Stanford Law Review in 1995 generally took the position, with varying degrees of confidence, that as a matter of original public meaning, the Constitution precludes legislative officers from succeeding to the presidency under the Succession Clause. The Succession Clause provides:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the …

Legislative Officer Succession: Part I And Part Ii, Seth Barrett Tillman

Seth Barrett Tillman

This article is the next installment of Legislative Officer Succession: Part I (posted on BEPRESS and on SSRN).

This section distinguishes "officers under the authority of the United States" from other classes of constitutional and statutory officers. It also responds to some of the Amars' structural arguments in defense of their "officer" (as used in the Succession Clause) equals "officer of the United States" (as used in the Appointments Clause) position.

The Amars state:

"It might be argued that an intermediate reading of the Succession Clause is possible -- one that insists that a successor be a federal, rather than …

Time Well Spent: Congressional Daylight Saving Time Legislation Saves Lives, Not Just Oil, Steve P. Calandrillo

Steve P. Calandrillo

Abstract: Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and Congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last 30 years. While Congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored. This …

Congressional Immunity Grants And Separation Of Powers: Legislative Vetoes Of Federal Prosecutions, Hanah M. Volokh

Hanah M. Volokh

Congressional investigations can derail criminal prosecutions. The most famous example is the failure of the prosecution of Oliver North for his role in the Iran-Contra scandal after he testified at a congressional committee hearing about his conduct. The D.C. Circuit Court of Appeals held that much of the evidence being used in the prosecution was tainted by association with North's compelled congressional testimony and could not be used at trial.

The knowledge that congressional investigations and grants of immunity can create problems for prosecutors has not stopped either the investigations or the immunity grants. Recently, Congress granted immunity to a …

Point Of Order: An Insider's Guide To Congressional Investigations, Don R. Berthiaume, Raymond Shepherd

Don R Berthiaume

This CONTEMPORARY LEGAL NOTE provides some insight into the different phases of a congressional investigation; the critical differences between criminal proceedings and congressional investigations; the legal devices committees and subcommittees utilize in their investigations; and the basic rules of congressional hearings.

Model Continuity Of Congress Statute, Seth Barrett Tillman

Seth Barrett Tillman

This is a model continuity of Congress statute. States with constitutional provisions similar to U.S. Const. art. I, Section 7 could easily modify the act in light of their state constitutional and parliamentary nuances.

My opening article appears at: Tillman, Model, 4 PIERCE LAW REVIEW 191 (2006). Professor Sanford V. Levinson comments on my Model at: Levinson, Comment, Assuring Continuity of Government, 4 PIERCE LAW REVIEW 201 (2006). I reply to his comment at: Tillman, Reply, Overruling INS v. Chadha, 4 PIERCE LAW REVIEW 207 (2006).

Since publication, Pierce Law Review has been renamed University of New Hampshire Law Review. …

Agenda Setting, Issue Priorities, And Organizational Maintenance: The U.S. Supreme Court, 1955 To 1994, Jeff L. Yates, Andrew B. Whitford, William Gillespie

Jeff L Yates

In this study, we examine agenda setting by the U.S. Supreme Court, and ask the question of why the Court allocates more or less of its valuable agenda space to one policy issue over others. Our study environment is the policy issue composition of the Court's docket: the Court's attention to criminal justice policy issues relative to other issues. We model the Court's allocation of this agenda space as a function of internal organizational demands and external political signals. We find that this agenda responds to the issue priorities of the other branches of the federal government and the public. …