Law Commons^™

Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski Jr., Johnjerica Hodge, Wesley W. Wintermyer

Articles

This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and "good cause" limitations on the President's removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President's appointment power-and with good reason, given the ubiquity of partisan balance requirements and the executive branch's historical acquiescence to them. However, the Supreme Court's decision in Free …

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

Articles

In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper's interest in publishing the photograph …

Transcending Formalism And Functionalism In Separation-Of-Powers Analysis: Reframing The Appointments Power After Noel Canning, Ronald J. Krotoszynski Jr.

Articles

Contemporary separation-of-powers theory and practice generally rely on two competing theories-formalism and functionalism-to frame and decide contested questions about the scope of each branch's constitutional power and authority. In some areas, this dichotomy works reasonably well and possesses significant explanatory force. But the dichotomy's utility is considerably less obvious in the context of the federal appointments process.

The Supreme Court's recent decision in National Labor Relations Board v. Noel Canning crisply demonstrates the limitations of formalism and functionalism in resolving separation-of-powers questions that equally implicate text, structure, and historical practice. Moreover, Justice Breyer's Noel Canning opinion deftly transcends the formalism-functionalism …