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En Banc Category

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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Bringing the Independent Agencies in from the Cold

Nov. 2, 2009—Invalidating the PCAOB would cause unnecessary disruption to the Federal Government. The supervisory powers of the SEC over the agency justify concluding that its members are inferior officers. The removal provision can be sustained by confirming that the President has constitutional powers of removal that are appropriate to the function involved. The President’s power to...

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Free Enterprise Fund v. Public Company Accounting Oversight Board

Oct. 4, 2009—This is the introductory essay in an electronically published roundtable sponsored by the Vanderbilt Law Review on the Supreme Court’s forthcoming consideration of Free Enterprise Fund v. Public Company Accounting Oversight Board, a case raising important separation of powers questions and thought by some to foreshadow overruling or limiting of such precedents as Humphrey’s Executor...

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Defending a Social Learning Explanation: A Comment on The Origins of Shared Intuitions of Justice

Jun. 22, 2009—This Response addresses the November 2007 Vanderbilt Law Review Article, The Origins of Shared Intuitions of Justice, by Professors Paul H. Robinson, Robert Kurzban, and Owen D. Jones. The Article reviews empirical evidence that people share surprisingly similar moral inclinations—especially with respect to core social principles like opposition to unprovoked physical harm, the taking of...

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Reforming the Legal Ethics Curriculum: A Comment on Edward Rubin’s “What’s Wrong with Langdell’s Method and What To Do About It”

Apr. 30, 2009—This Response addresses Edward Rubin’s March 2007 article “What’s Wrong With Langdell’s Method and What to Do About It,” which discusses the need for curriculum reform in U.S. law schools. He proposes a curriculum overhaul to reform, at a minimum, first-year law school courses, and he advocates that law schools develop more concentrations—programs akin to...

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Relative Difference and the Dean Method: A Comment on “Getting the Math Right”

Mar. 30, 2009—This Response critiques a recent Article in the Vanderbilt Law Review, Getting the Math Right: Why California Has Too Many Seats in the House of Representatives, by Professor Paul H. Edelman, on the doctrine of “one person one vote” as applied to congressional apportionment. Professor Edelman discusses the background of “one person one vote” in...

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Wrongs Without Recourse: A Comment on Jason Solomon’s Judging Plaintiffs

Nov. 22, 2008—Jason Solomon’s very interesting Article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain the existence of rules that bar or limit recovery by a tort victim on the ground that she failed to take certain pre-tort steps to protect herself from harm, or failed to take certain post-tort steps in...

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Public Pension Funds as Shareholder Activists: A Comment on Choi and Fisch

Oct. 6, 2008—This Response critiques a recent Article on public pension fund shareholder activism by Stephen Choi and Jill Fisch. Choi and Fisch use the results of a survey of forty public pension funds as a basis for an empirical and normative analysis of public pension fund activism. Choi and Fisch’s survey evidence gives us some tantalizing...

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