Law Commons^™

The Partiality Norm: Systematic Deference In The Office Of Legal Counsel, Adoree Kim

Cornell Law Review

This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's de facto lawmaking power, a result of its position as legal adviser for the executive-- "the judgment of [the OLC] . . . becomes the law." Moreover, the OLC "is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts--a circumstance in which OLC's advice may effectively be the final word on the controlling law." Whether …

Delegating For Trust, Edward H. Stiglitz

Cornell Law Faculty Publications

Courts and legal observers have long been concerned by the scope of authority delegated to administrative agencies. The dominant explanation of delegated authority is that it is necessary to take advantage of administrative agencies' expertise and expansive rulemaking capacity. Though this explanation makes sense in many settings, it falters in many areas and has given rise to a number of longstanding puzzles, such as why Congress does not invest in its own institutional capacity.

Unrecognized in this debate over the puzzles of delegation is that Congress may delegate to take advantage of another distinctive attribute of administrative decisionmaking: the credible …

A First Amendment Right To Corrupt Your Politician, Eugene Temchenko

Cornell Law Review

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutcheon, this Note and other commentators conclude that the Supreme Court may have inadvertently created …

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Cornell Law Faculty Publications

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in so …