Law Commons^™

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

The Statutory Separation Of Powers, Sharon B. Jacobs

Publications

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

How Presidents Interpret The Constitution, Harold H. Bruff

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No abstract provided.

The President's Faithful Execution Duty, Harold H. Bruff

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No abstract provided.

The President And Congress: Separation Of Powers In The United States Of America, Harold H. Bruff

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Although the framers of the Australian Constitution adopted many features of the United States Constitution, they rejected the separation of legislative and executive power in favour of responsible government in a parliamentary system like that of the United Kingdom. In doing so, Australians depended on existing conventions about the nature of responsible government instead of specification of its attributes in constitutional text. The United States Constitution contains detailed provisions about separation of powers, but unwritten conventions have produced some central features of American government. This article reviews conventions developed by Congress that constrain Presidents in the domestic sphere with regard …

Youngston Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros

Publications

My goal in this Article is not to provide a comprehensive survey of the Court's separation of powers cases from 1952 to the present. Rather, I want to present a modest-sized account of this shift from humility to arrogance and to do so not by the direct method of scrupulous narration, but through a combination of stealth and selectivity, with the idea that less could be more. With this model in mind, I have focused on the language of a few representative opinions: Jackson and Frankfurters concurrences in Youngstown, Chief Justice Rehnquist's majority opinion in Dames & Moore v. Regan, …

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

Placing Your Faith In The Constitution, Harold H. Bruff

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No abstract provided.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

The Incompatibility Principle, Harold H. Bruff

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No abstract provided.

Executive Power And The Public Lands, Harold H. Bruff

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No abstract provided.

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

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In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …

Nineteenth-Century Orthodoxy, Richard B. Collins

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No abstract provided.

Judicial Supremacy And The Settlement Function, Robert F. Nagel

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No abstract provided.

Recent Developments, An Appeal By Any Other Name: Congress's Empty Victory Over Habeas Rights--Felker V. Turpin, 116 S. Ct. 2333 (1996), Scott Moss

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No abstract provided.

That The Laws Shall Bind Equally On All: Congressional And Executive Roles In Applying Laws To Congress, Harold H. Bruff

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No abstract provided.

Initiative Enigmas, Richard Collins

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No abstract provided.

The Federalist Papers: The Framers Construct An Orrery, Harold H. Bruff

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No abstract provided.

Can Buckley Clear Customs?, Harold H. Bruff

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No abstract provided.

Specialized Courts In Administrative Law, Harold H. Bruff

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No abstract provided.

Separation Of Powers Under The Texas Constitution, Harold H. Bruff

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No abstract provided.

Book Review, Richard B. Collins

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No abstract provided.

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

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No abstract provided.

Public Programs, Private Deciders: The Constitutionality Of Arbitration In Federal Programs, Harold H. Bruff

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No abstract provided.

Independent Counsel And The Constitution, Harold H. Bruff

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No abstract provided.

On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff

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No abstract provided.

The Legislative Veto, The Constitution, And The Courts, Robert F. Nagel

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No abstract provided.

Controlling The Structural Injunction, Robert F. Nagel

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No abstract provided.

Judicial Review And The President's Statutory Powers, Harold H. Bruff

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No abstract provided.

A Comment On The Burger Court And "Judicial Activism", Robert F. Nagel

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No abstract provided.