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En Banc Category

Introduction: Dukes v. Wal-Mart Stores, Inc.

Oct. 19, 2010—Dukes v. Wal-Mart Stores, Inc., as a case, is almost as expansive as its defendant. For nearly the past ten years, the world has watched as Betty Dukes and six other women representing female Wal-Mart workers have sued the new Goliath for discriminating against women in its pay and promotion policies. Although employment class actions...

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Our Twenty-First Century Constitution

Dec. 15, 2009—Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws...

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On Hunting Elephants in Mouseholes

Dec. 15, 2009—This response argues against using the vehicle of the relatively minor PCAOB case to decide large issues about the constitutionality of the independent agencies. It reviews constitutional provisions and history supporting independent functions. It concludes that the Court can invoke the avoidance canon to read the statute to allow appropriate levels of presidential supervision over...

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It Depends

Dec. 15, 2009—I suspect that Professors Pildes, Bruff, and I disagree less about the Appointments Clause than about the meaning of the word “unconstitutional.”  I use the word as a descriptive fact about semantic meaning, while Professors Pildes and Bruff are more concerned about the operational consequences of constitutional norms for actual governance and judicial decision-making.  As...

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Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional

Nov. 2, 2009—PDF Download Link This article has two aims: to explain the historical context and reasons that led Congress to design the administrative structure at issue in Free Enterprise Fund, and to provide a realistic account of how that structure actually functions in practice. The article is, thus, a kind of “Brandeis brief” for this important...

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