Law Commons^™

The Judges V. The State: Obtaining Adequate Judicial Compensation And New York's Current Constitutional Crisis, Justin S. Teff

Justin S Teff

The problem of obtaining adequate judicial compensation, a cornerstone of judicial independence, has now reached the level of a constitutional crisis in New York. In this year and the last, three separate law suits have been brought by New York judges against the coordinate branches of government regarding the constitutionality of the near decade-long failure to provide for judicial pay increases. This article reviews the history of the present crisis, the judges’ lawsuits, and makes conclusions regarding the state Constitutional claims regarding New York’s no-diminution clause and separation of powers doctrine. The article also reviews the proper remedy should the …

The Road Forward From Grable: Separation Of Powers And The Limits Of "Arising Under" Jurisdiction, Rachel M. Janutis

Louisiana Law Review

No abstract provided.

Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss

Michigan Law Review

The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …

"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939-1953, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, …

The President’S Question Time: Power, Information, And The Executive Credibility Gap, Sudha Setty

Cornell Journal of Law and Public Policy

No abstract provided.

Environmental Standing: Who Determines The Value Of Other Life?, Francisco Benzoni

Duke Environmental Law & Policy Forum

No abstract provided.

The President's Signing Statement Upon Signing The National Defense Authorization Act For Fiscal Year 2008: Hearing Before The Subcomm. On Oversight And Investigations Of The H. Comm. On Armed Services,, 110th Cong., Mar. 11, 2008 (Statement Of Nicholas Quinn Rosenkranz, Geo. U. L. Center), Nicholas Quinn Rosenkranz

Testimony Before Congress

No abstract provided.

Safeguarding Fundamental Rights: Judicial Incursion Into Legislative Authority, Alexander Tsesis

Alexander Tsesis

The Supreme Court recently limited Congress’s ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states’ sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. The Supreme Court also overlooked principles of liberty and equality lying at the foundation of American governance. The Court’s restrictions on legislative authority to identify fundamental rights and to safeguard them runs counter to the central credo of American governance that …

Substance Or Illusion? The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Amanda Leiter

Individuals and interest groups challenging agency action or inaction often must allege not that they or their members have been or certainly will be harmed by the agency’s approach, but instead that they face an increased risk of future harm. Courts struggle to analyze standing in these so-called “increased-risk” cases: Does the elevated risk constitute the necessary injury-in-fact, or must the likelihood of realized harm exceed a certain threshold before the case becomes cognizable? Several circuits take the former view, but the D.C. Circuit requires plaintiffs to establish that the alleged risk clears some indeterminate “sufficiency” or “substantiality” bar. The …

Rethinking Treaty Interpretation, Scott M. Sullivan

Journal Articles

No abstract provided.

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

Does Australia Have A Constitution? Part I - Powers: A Contitution Without Constitutionalism, Kenneth R. Mayer, Howard Schweber

Kenneth R Mayer

Forthcoming in the UCLA Pacific Basin Law Journal

Firing U.S. Attorneys: An Essay, David M. Driesen

College of Law - Faculty Scholarship

This essay examines the constitutional basis for Justice Department independence, the main constitutional issue underlying the recent dismissal of United States Attorneys. It outlines a duty-based theory of executive power, a theory that Article II should be understood as a set of checks and balances to secure faithful execution of the law, rather than solely as a source of Presidential power. It shows how this theory can provide a constitutional justification for Justice Department independence. The essay reexamines the unitary executive theory which claims that the Constitution gives the President unlimited power to fire prosecutors in the context of the …

The Political Question Doctrine And Civil Liability For Contracting Companies On The “Battlefield”, Jeffrey F. Addicott

Faculty Articles

While the use of civilian contractors to support military operations is not a new phenomenon, their use in the War on Terror is unprecedented. The numbers of civilian contractors in active combat zones and the specific activities they perform have significant legal and policy ramifications.

Recent case law associated with civil complaints brought in American courts against contracting companies operating in battlefield environments has given rise to a “political question” doctrine. This doctrine excludes from judicial review all controversies involving policy choices and other value determinations that the Constitution reserves to the Congress and the Executive for resolution.

Due to …

What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses, Dawn E. Johnsen

Articles by Maurer Faculty

President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, …

The Constitutionality Of Warrantless Electronic Surveillance Of Suspected Foreign Threats To The National Security Of The United States, Michael Avery

University of Miami Law Review

No abstract provided.

Impersonating The Legislature: State Attorneys General And Parens Patriae Product Litigation, Donald G. Gifford

Faculty Scholarship

The state attorney general has emerged during the past decade as a “super plaintiff” in state parens patriae litigation against manufacturers of cigarettes, automobiles, lead paint, and pharmaceuticals. Attorneys general sue on behalf of their states as the collective plaintiff, seeking reimbursement for the costs of treating or preventing product-caused diseases suffered by individual residents, even though such individual victims would not themselves be able to recover as plaintiffs. More importantly, they seek to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects their own visions. This Article traces how state …

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.

Members Only - United States V. Rayburn House Office Building, Room 2113: The Speech Or Debate Clause, The Separation Of Powers And The Testimonial Privilege Of Preemptive Nondisclosure, John D. Friel

Villanova Law Review

No abstract provided.

Unleashing Or Harnessing 'Armies Of Compassion'?: Reflections On The Faith-Based Initiative, Linda C. Mcclain

Faculty Scholarship

A central tenet of President George W. Bush's faith-based initiative, launched in 2001, is that the federal government, by entering into more partnerships with religious and community organizations, should put the power of faith to work to solve pressing social problems. Proponents of the initiative have invoked the eighteenth-century French writer Alexis de Tocqueville's famous observations about the American propensity to join various voluntary associations as well as the Catholic principle of subsidiarity. Seven years into the faith-based initiative, challenging questions remain about what, exactly, it means to put faith to work. Such questions deserve attention, given the institutionalization of …

Preemption And Federal Common Law, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

University of Colorado Law Review

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.

Is Dick Cheney Unconstitutional?, Glenn Harlan Reynolds

Scholarly Works

During a recent policy kerfuffle, Vice President Dick Cheney's office briefly argued that the Vice President is really a legislative official, and hence not subject to some obligations of the Executive branch. Though Cheney's office quickly shifted its argument to less controversial statutory grounds, it turns out that the Vice Presidency's legislative character is, in fact, quite significant. To the extent that the Vice President is a legislative official, however, it is likely that extensive delegation of Presidential authority to the Vice President, of the sort that Vice President Cheney has enjoyed, is probably unconstitutional and certainly unwise.

Providing A Safe Harbor For Those Who Play By The Rules: The Case For A Strong Regulatory Compliance Defense, Richard C. Ausness, H. Lee Barfield, David A. King, Joshua R. Denton, Stephen J. Jasper

Law Faculty Scholarly Articles

On September 25, 2003, a fire broke out at the National Health Care (NHC) nursing home facility in Nashville, Tennessee, causing sixteen deaths and a number of injuries from smoke inhalation. Thirty-two victims subsequently filed suit against the nursing home, alleging that NHC was negligent for failing to install sprinklers in its facility. This claim was made notwithstanding the fact that applicable federal, state, and local safety regulations did not require the installation of sprinklers in this particular type of building, and notwithstanding that the NHC facility had been inspected by state fire inspectors just months before the fire and …