Law Commons^™

Presidential Power And Constitutional Responsibility, Thomas P. Crocker

Faculty Publications

Some constitutional theorists defend unbounded executive power to respond to emergencies or expansive discretionary powers to complete statutory directives. Against these anti-Madisonian approaches, this Article examines how the textual assignment of republican virtues helps to constitute and constrain the president's power. The Madisonian solution for constitutional constraint both creates institutions for unenlightened statesmen and relies on virtue to make governing possible. Constitutional responsibility is a consistent textual theme found in the command to "take Care that the Laws be faithfully executed," the responsibility to remain faithful to the office of president, and the obligation to preserve the Constitution itself. Although …

State Secrets & Executive Accountability, Christina E. Wells

Faculty Publications

This essay, part of a symposium on executive power, examines use of the state secrets privilege in the Obama administration. Specifically, it views the Obama administration’s approach to the state secrets privilege through the lens of “explanatory accountability” – i.e., the notion that executive officials must explain and justify their decisions or face negative consequences.Although President Obama entered office criticizing the Bush administration’s overly broad assertions of the state secrets privilege, Obama officials nevertheless continued the Bush administration’s actions in various lawsuits. In response to sharp criticism, however, the Obama administration eventually revealed a new policy promising greater accountability and …

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt

Faculty Publications

The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that …