Executive Power and the Law of Nations in the Washington Administration

Robert J. Reinstein *

The Washington administration has attracted increased attention in the ongoing debate over the power of the President to determine and conduct the nation’s foreign policy. The actions of the first President are being seen as important precedents on the scope of executive power, much as the statutes of the first Congress are recognized as being important precedents on the scope of legislative power.

This article provides revisionist answers to three key questions concerning the Washington administration’s assumption of authority in foreign policy: What constitutional source of power did the administration actually rely upon? How did its jurisprudential understanding of the law of nations affect the exercise of executive power? And does the experience of the Washington administration demonstrate the limits of originalism as a constitutional methodology?

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Congressional Inquiry and the Federal Criminal Law

Richard Broughton *

Hardly anyone, it seems, really believes that the scope of federal criminal law is just about right. Though academics and commentators across the spectrum of law and politics rarely find general agreement when it comes to federal power, there actually appears to be relatively broad agreement these days that some things about federal criminal law are not quite right. In particular, the issue has brought together minds from both the political left and the political right, making criticism of federal criminal law one of the issues du jour among commentators struck by the marriage of these strange bedfellows. Indeed, although it is the conventional wisdom that conservatives have generally favored the government in criminal justice adjudication, it is the most conservative members of the Supreme Court who have emerged as prominent champions of structural (and even some rights-based) limits on federal criminal justice powers, often siding with criminal defendants. Whether the concern is “overfederalization” and the exercise of congressional power beyond constitutional limits, or the duplication of resources that occurs when state and federal crimes too often overlap, or the danger that people of dubious culpability will be ensnared in a vast web of obscure federal laws about which they had no reason to know, or the increasing severity of federal sentencing for crimes that cause comparatively little harm or that involve offenders who pose comparatively low risk to the community, thoughtful minds across the political spectrum are bothered by the sheer scope of the federal government’s power to prosecute and punish crimes, and the relative ease with which federal assertions of criminal law enforcement power occur.

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Tax Court Appointments and Reappointments: Improving the Process

Danshera Cords *

The partisanship of the current political dialog coupled with the constant news cycle results in an increasingly rancorous discourse about government, law, and the judicial process. Judicial appointments have become increasingly politicized. This politicization places the judicial appointment process at the mercy of politics more than any other time in recent history. The appearance of an increasingly politicized judicial appointment process is troubling as the judicial branch of government is intended to remain above the political fray.

Court watchers note that increasingly bitter partisan battles make navigating the judicial appointment process ever more difficult. The Republicans and Democrats wage increasingly hostile battles along ideological lines to keep the judiciary free of judges whom the parties find objectionable for political and moral reasons. One can see the concern over ideology throughout the judicial appointment process—presidential nomination, Senate advice and consent, and confirmation. Fierce battles arise particularly when different parties control the Presidency and the Senate. The partisanship is not isolated to either branch. While Presidents seek to appoint judges who will support their philosophical approaches to governance, the party controlling the Senate seeks to limit the influence of the other party’s ideology in the judiciary. The tension between the parties manifests itself in slower appointments to the bench, regardless of which Senate committee investigates and oversees the advice and consent process.

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Reading the Standing Tea Leaves in American Electric Power Co. v. Connecticut

Bradford C. Mank *

In American Electric Power Co. v. Connecticut (“AEP”), eight Justices of the U.S. Supreme Court unanimously concluded that the U.S. Environmental Protection Agency’s (the “EPA”) authority to regulate greenhouse gases (“GHGs”) pursuant to the Clean Air Act, which the Court recognized in its 2007 decision in Massachusetts v. EPA, “displace[s] any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” Thus, the AEP decision endorsed the Massachusetts decision’s interpretation of the Clean Air Act to include regulation of GHGs, stating that it “speaks directly to emissions of carbon dioxide from the defendants’ plants.” Justice Sonia Sotomayor recused herself from hearing the AEP case because she sat on the three-judge panel of the U.S. Court of Appeals for the Second Circuit that heard the case below, although she was appointed to the Supreme Court before the Second Circuit actually decided the case. Her absence was crucial to the Supreme Court’s decision regarding standing and jurisdiction in the case. The Court, by an equally divided vote of four to four, affirmed the Second Circuit’s decision finding standing and jurisdiction in the case.

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An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions

Patricia Hatamyar Moore *

Judges, lawyers, academics, legislators, and law students have collectively spent thousands of hours over the last two years parsing Ashcroft v. Iqbal, debating whether it mandated a radical change in federal pleading standards, and predicting its future influence on rulings on motions to dismiss federal complaints under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Some have also attempted to quantitatively measure whether federal district court judges were less likely to grant 12(b)(6) motions under the old “no set of facts” standard set forth in dictum in Conley v. Gibson than under the new “plausibility” standard introduced in Bell Atlantic Corp. v. Twombly and amplified in Iqbal.

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Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Reviewed by Professor Marin Roger Scordato

Marin Roger Scordato *

In 1922, Charles Grove Haines, a political scientist, wrote, “American courts have clung to the belief that justice must be administered in accordance with fixed rules, which can be applied by a rather mechanical process of logical reasoning to a given state of facts and can be made to produce an inevitable result.” Seventy-five years later, Frederick Schauer, a professor of law, wrote, “To the Legal Realist, rules serve not as sources of ex ante guidance, but as vehicles of ex post legitimation of decisions reached without regard for the rules.” These quotes are illustrative of the classic divide between what has generally come to be called legal formalism and legal realism.

In his new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, Brian Tamanaha, a professor of law at the Washington University School of Law in St. Louis, seeks to demonstrate that this conventional account of a radical change in the understanding of the nature of common law jurisprudence from formalism to realism in the 1920s and 1930s is profoundly wrong. This effort follows years of excellent work in this area by Professor Tamanaha, including his 2006 book, Law as a Means to an End: Threat to the Rule of Law, and his 2004 book, On the Rule of Law: History, Politics, Theory.

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Virtual Adultery: No Physical Harm, No Foul?

Kathryn Pfeiffer *

In 2007, Ric Hoogestraat’s picture-perfect marriage to his partner, Tenaj—which included a house with a mortgage, pets, and pastimes such as riding together on his motorcycle—earned notoriety precisely for the normalcy it exemplified. Their relationship, in fact, was anything but normal—because Tenaj was Ric’s virtual wife whom he met and interacted with daily through a computer game—and Ric’s real marriage was suffering. His actual wife, Sue Hoogestraat, felt “widowed” by her husband’s virtual life and did not expect him to return to her soon: “This other life is so wonderful; it’s better than real life. Nobody gets fat, nobody gets gray. The person that’s left can’t compete with that.” Although this type of behavior affects the marital relationship, the law does not consider it actionable conduct. With so much socially driven media available, however, it is difficult to draw a bright line between reality and fantasy. For example, an ABC News survey conducted in 2004 found that forty-two percent of women and twenty-five percent of men considered visiting websites with sexual content to be cheating. These findings covered only passive Internet sites—they did not include interactive sites in which a spouse engaged with a third person, like Ric and Tenaj.

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Civil Practice and Procedure

John R. Walk *
Andrew P. Sherrod **

This article surveys recent significant developments in Virginia civil practice and procedure. Specifically, the article discusses opinions of the Supreme Court of Virginia from June 2010 through June 2011 addressing civil procedure topics; significant amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period; and legislation enacted by the Virginia General Assembly during its 2011 session that relates to civil practice.

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Corporate and Business Law

Laurence V. Parker, Jr. *

In the 2011 session, the Virginia General Assembly passed House Bill 2358, Benefit Corporations, to be codified as article 22 (the “Benefit Corporations Article”) of the Virginia Stock Corporation Act (“VSCA”). The Benefit Corporations Article is largely based on legislation prepared in other states and allows a Virginia corporation to elect in its articles of incorporation to be treated as a “benefit corporation.” These for-profit corporations are required to pursue not only profitability but also a general public benefit and, if one so elects, one or more specific public benefits. In Section II of this article, the author discusses the Benefit Corporations Article in detail. Section III examines some aspects of the Benefit Corporations Article for social entrepreneurs and practitioners to consider before making the benefit corporation election. In Section IV, the author asks whether practitioners and social entrepreneurs can achieve some of the same corporate governance objectives by private ordering without electing to be treated as benefit corporations. Finally, Section V concludes with some observations about the Benefit Corporations Article itself.

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