Law Commons^™

The Role Of The United States Senate Concerning "Self-Executing" And "Non-Self-Executing Treaties", Lori Fisler Damrosch

Faculty Scholarship

This essay concerns a pattern in treaty actions of the U.S. Senate which tends to weaken the domestic legal effect of treaties. Under this pattern, the Senate qualifies its consent to U.S. ratification of the treaty with a declaration or other condition to the effect that the treaty shall be non-self-executing, or otherwise expresses its intention that the treaty shall not be used as a direct source of law in U.S. courts. Such qualifications, referred to hereinafter as "non-self-executing declarations," give rise to important questions about the place of the affected treaties within the fabric of U.S. law, especially in …

Constitutional Control Of Military Actions: A Comparative Dimension, Lori Fisler Damrosch

Faculty Scholarship

The purpose of this essay is to examine some aspects of the legal framework for military activity in the internal law of some of the world's most powerful states. The international community has a major stake in the constitutional evolution of member states as regards the authority to decide to go to war. That stake – or those interests, since they are plural (and hold some possibility for contradiction) – can be identified as follows:

(1) to strengthen trends toward constitutionalism generally, by which I mean the concept of governance based on law;
(2) to strengthen trends toward civilian control …

Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan

Faculty Scholarship

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett …

Constitutional Politics In Poland: A Report On The Constitutional Committee Of The Polish Parliament, Andrzej Rapaczynski

Faculty Scholarship

This Article is neither a comprehensive historical account of the work of the Constitutional Committee of the Polish Parliament nor a theoretical synthesis of recent constitutional developments in Poland. Rather, it is a mixture of theory, anecdote, and personal reminiscence that I feel at this point most capable of providing. As will be seen, the work on the new Polish constitution has in some ways been overtaken by events that unfortunately have always lurked in the background of the drafters' work and influenced their decisions. In fact, it is not clear that Poland will enact anything resembling the draft prepared …

Home Rule, Majority Rule, And Dillon's Rule, Richard Briffault

Faculty Scholarship

Clayton Gillette's In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law? is an ambitious attempt to breathe new life into an old local government law chestnut through the analytical tools of modern political economy. Gillette asserts that because the Rule permits state judges to invalidate local legislation that results from "one-sided lobbying," Dillon's Rule increases the allocational efficiency of local decision making and reduces the deadweight losses attendant on special interest pursuit of rent-seeking ordinances. According to Gillette, Dillon's Rule checks the danger of special interest abuse of local politics by constraining local …

Plenary Session: The U.S. Constitution In Its Third Century: Foreign Affairs – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Our Moderator has asked us to look ahead into the Constitution's third century and anticipate the emerging issues. I believe the changes in the field that I have selected, international organizations and institutions, are likely to be dramatic, perhaps more so than the more incremental changes in the areas being addressed by my copanelists. With all respect to our Moderator, I would like to take note of the rather modest treatment given to international organizations in the leading work on foreign affairs and the Constitution published by Louis Henkin in 1972. I hope he will forgive me if I suggest …

Ronald V. Dellums V. George Bush (D.D.C. 1990): Memorandum Amicus Curiae Of Law Professors, Bruce A. Ackerman, Abram Chayes, Lori Fisler Damrosch, John Hart Ely, Erwin N. Griswold, Gerald Gunther, Louis Henkin, Harold Hongju Koh, Philip B. Kurland, Laurence H. Tribe, William W. Van Alstyne

Faculty Scholarship

This joint memorandum is submitted to the court hearing Dellums v. Bush. This amicus brief advocates that the President may not order American armed forces to make war without consultation with and approval by Congress. The brief also argues that the case is justiciable.