Law Commons^™

Nondelegation In The States, Benjamin Silver

Vanderbilt Law Review

American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This Article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This Article analyzes this mess of state nondelegation jurisprudence, arguing that …

Checks And Balances In The Criminal Law, Daniel Epps

Vanderbilt Law Review

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and the “separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values …

Funding Restrictions And Separation Of Powers, Zachary S. Price

Vanderbilt Law Review

Congress's "power of the purse"-its authority to deny access to public funds-is one of its most essential constitutional authorities. A central mechanism through which English parliaments clawed liberty from reluctant monarchs, it remains a crucial check on executive overreaching. It may provide power to stop a president in his tracks. And yet, two centuries after the founding, the scope of this congressional power and its relationship with constitutional executive authorities remains both contested and inadequately theorized.

Bond, Buckley, And The Boundaries Of Separation Of Powers Standing, William Marks

Vanderbilt Law Review

A constitutional crisis is at hand. It is 2017, and a new President of the United States has taken office.' The new President generally opposes environmental regulations and accordingly nominated a candidate for Administrator of the Environmental Protection Agency ("EPA") with a deregulatory track record. The Senate, however, stood in the way: a proenvironment party holds the majority and threatened to filibuster. New presidents in this situation typically withdraw their nominations to avoid political embarrassment. But this time was different. In a forceful display of executive authority, the President unilaterally installed the nominee as the EPA Administrator. True, this action …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law Review

In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts,' must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state's. system of governance. But rarely does it attempt to under- stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ.

This is unfortunate. Understood through …

The Executive Branch And International Law, Arthur M. Weisburd

Vanderbilt Law Review

Public international law, through its rules regulating the dealings between independent nations, purports to impose limits on the actions of all governments, including those of the United States. In this context American lawyers interested in foreign relations may reasonably wonder whether American courts would enforce rules of public international law purporting to bind the United States against the United States government, particularly the executive branch. A fair number of Supreme Court cases have dealt with the enforce ability of treaties in American courts.' Treaties, however, are only one source of international law. The other important source, customary international law, is …

Federalism, Separation Of Powers, And Individual Liberties, Dennis G. Lagory

Vanderbilt Law Review

In a world that the Framers hardly could have anticipated, the Constitution remains a singularly effective instrument for the pres- ervation of individual liberty. In its allocation of power between the states and the federal government, it provides Americans with multiple champions of their rights--the federal government, which protects a liberty that is constantly evolving to adapt traditional values to new realities, and the state governments, which protect the basic liberties to which mankind has always been entitled. In its allocation of power between the branches of the federal government, the Constitution provides us with a polity possessing powers adequate …

The Independent Agency After Bowsher V. Synar--Alive And Kicking, William H. Hardie, Iii

Vanderbilt Law Review

Because the modern administrative agency combines executive, legislative, and judicial powers, various authorities throughout history have argued that the fundamental structure of the administrative system is unconstitutional. Recently, the relationship between the separation of powers doctrine and the administrative state has returned to the foreground of both American politics and constitutional law. Attempts by the current executive branch to rein in the policy and rule making activities of "independent" federal agencies have resulted in both praise and cries of foul from the legal community and Congress.' These attempts at executive branch control have been precipitated by a perceived shift in …

Book Reviews, Stephen L. Wasby, Herbert A. Johnson

Vanderbilt Law Review

The Courts and Social Policy Author: Donald L. Horowitz

Reviewed by Stephen L. Wasby

Donald Horowitz's The Courts and Social Policy is a serious effort to deal with the question of judicial capacity. Horowitz talks first of the expansion of judicial responsibility, which he thinks is a departure from the traditional exercise of the judicial function, and then explores the sources of this growth, particularly expansive statutory interpretation. He believes that courts do not do well at interpreting the mixes of statutes, regulations, and local arrangements with which they are faced more and more frequently. "Griggs v. Duke Power Co.," …

Recent Developments, Law Review Staff

Vanderbilt Law Review

The institution of criminal charges against critical or disfavored legislators by the King of England was the prime factor prompting the long struggle for parliamentary privilege and, in the context of the American system of separation of powers, is the predominant thrust of the speech or debate clause. If the privilege of legislative immunity is to perform its traditional function of permitting legislators to carry out their legislative functions without fear of prosecution or harrassment from the executive and judicial branches, it should be applied broadly to effectuate its intended purpose of preserving the independence of the legislature and public …

Constitutional Law -- 1961 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

Although a relatively small number of cases turned upon constitutional questions during the survey period, some important decisions were handed down in this area. In five separate decisions legislation was declared unconstitutional. The impact of the constitutional decisions varies from the right to millions of dollars in school funds in Shelby County and the salary of the clerk of General Sessions Court of Clay County to approval of permanent tenure for all franchised automobile dealers in the state. The scope of governmental power over the administration of estates, condemnation of private property and the pursuit of private businesses brought forth …

Legislative Disqualifications As Bills Of Attainder, Francis D. Wormuth

Vanderbilt Law Review

The separation of powers was first introduced into political discussion during the English Civil Wars of the seventeenth century by the political party known as Levellers. The object was to insure that persons be judged by general and prospective rules. If the legislative authority should decide a particular case, it might be tempted through partiality or prejudice to improvise a special rule for the situation. So the separation of powers was intended to achieve that impartiality in government which Aristotle called "the rule of law."

The doctrine of checks and balances was also introduced into political discussion during the Civil …