Law Commons^™

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

William K. Kelley

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

Dealing With Trans-Territorial Executive Rule-Making , Herwig C.H. Hofmann

Missouri Law Review

This Article discusses the reality of executive rule-making procedures with trans-territorial effect, with other words, the creation of non-legislative rules which have an effect outside the territorial limits of the jurisdiction of origin. It maps the phenomenon, discusses some of its central challenges for the realization of general principles of law and considers possible legal approaches addressing these. One of the most important issues thereby is to find workable solutions in the context of the pluralism of sources of law – national, supranational and international.

Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky

Todd Grabarsky

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in …

Recalling Why Corporate Officers Are Fiduciaries, Lyman P.Q. Johnson, David K. Millon

Lyman P. Q. Johnson

For all the recent federal attention to regulating - and differentiating - corporate officer and director functions, a curious fact remains: state fiduciary duty law makes no distinction between the fiduciary duties of these two groups. Instead, courts and commentators routinely describe the duties of directors and officers together, and in identical terms. To lump officers and directors together as generic fiduciaries with no distinction being made between them, suggests - as patently is not the case - that their institutional function and legal roles within the corporation are the same. Such a view, consequently, undermines efforts more sharply to …

The Landmark James Hardie Case In Australia: A Wakeup Call For Non-Executive Directors, S M. Solaiman

Faculty of Law, Humanities and the Arts - Papers (Archive)

Company directors are not an ornament, but they are an essential component of corporate governance, and vigilant non-executive directors (NEDs) are believed to be crucial to good governance of corporations.' Recent corporate failures in the developed world underscore the need for an active role of private actors such as directors in good governance of corporations.

A company in legal concept is an entity created by law conferring artificial personality to represent individuals who operate it for profits or other purposes with perpetuity in its existence and simplicity in its contractual relations. • Corporations emerged as a division of society and …

Stochastic Constraint, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This essay reviews Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith (2012).

With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush's tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though …