Law Commons^™

The Politics Of Global Humanitarianism: R2p Before And After Libya, Michael W. Doyle

Faculty Scholarship

The responsibility to protect (R2P) is both a license for and a leash against forcible intervention. It succeeded in widening the scope of legitimate armed intervention by licensing some (protective) interventions but only because it was seen as a leash against other (exploitative) interventions. This chapter traces the origins of the R2P doctrine in the Kosovo and ICISS reports, highlights the special features of the 2005 Outcome Document, notes how the doctrine was strengthened in practice by careful attention to non-coercive measures in Myanmar, Kenya, and Guinea, and then examines the landmark case of its use to sanction and then …

Executive Federalism Comes To America, Jessica Bulman-Pozen

Faculty Scholarship

This Article proposes a different way of thinking about contemporary American governance, looking to an established foreign practice. Executive federalism – “processes of intergovernmental negotiation that are dominated by the executives of the different governments within the federal system” – is pervasive in parliamentary federations, such as Canada, Australia, and the European Union. Given the American separation of powers arrangement, executive federalism has been thought absent, even “impossible,” in the United States. But the partisan dynamics that have gridlocked Congress and empowered both federal and state executives have generated a distinctive American variant.

Viewing American law and politics through the …

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

The United States, Richard Briffault

Faculty Scholarship

The United States is an example of how three branches of government can stall and derail reform initiatives. The judiciary in particular is central to the US experience with political finance reform, repeatedly striking down legislation on party finance, despite consensus from executive and legislative branches. The most recent Supreme Court ruling, in April 2014, struck down one of the last remaining federal regulations, on the overall campaign contribution limits for individuals. At a subnational level, the United States does, however, see significant variations in terms of regulations on the flow of money into politics at a state level. In …