The Institutional Speech or Debate Protection: Nondisclosure as Separation of Powers

The Speech or Debate Clause encompasses certain privileges that inure to the benefit of legislators. But its nondisclosure protection secures legislative—not legislators\u27—independence. This nondisclosure protection provides Congress as an institution the procedural right to assert its interests prior to the executive branch\u27s compelling the disclosure of legislative acts and corresponding documentary materials. Reading the opinion of the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building as a separation-of-powers case distinguishes this institutional, procedural protection from a so-called nondisclosure privilege against any compelled disclosure, which was rejected by the U.S. Court of Appeals for the Ninth Circuit in United States v. Renzi. The D.C. Circuit\u27s construction of the Speech or Debate Clause in Rayburn leaves executive-branch officials considerable latitude to investigate Members of Congress, subject to procedural constraints. Because the value the Clause protects is democratic representation, rather than legislative independence per se, the question of nondisclosure is one of protective procedure, not of privilege: Congress, not the executive branch, gets to make first determinations as to privilege

Executive Defense of Congressional Acts

This Article explores the appropriate role of the executive branch in enforcing and defending federal statutes that the president, or executive-branch officials, believe may well be unconstitutional, but for whose constitutional validity reasonable arguments can be advanced. The Article first locates the question of the scope of the executive branch’s responsibility to enforce and defend federal statutes in the larger debate about the extent to which political branches of government are authorized—or even obligated—to make determinations of constitutionality independently of the views of the judiciary. It then reviews the historical practice of the executive branch in defending federal statutes—both the very strong presumption that statutes will be enforced and in turn defended if challenged in court and the departures from that general practice. The Article then considers a range of institutional practices and norms that are significant in considering the question. A number of considerations—including the distinctive capacities of the executive branch, the relationship between career lawyers and political appointees in the executive branch, the virtues of institutional continuity within the executive branch, and the relationship between the executive branch and Congress—reinforce the wisdom of the conventional practice of defending even those statutes that an incumbent administration views as offensive and possibly invalid. Moreover, a regime in which each administration views itself as having significant latitude to refuse to enforce and defend acts of Congress would be considerably less attractive than particular decisions or theories, given that different administrations are likely to have sharply different views about the appropriate occasions for, and the appropriate theories underlying, a refusal to enforce or defend federal statutes. In a world featuring an extremely broad range of views about proper constitutional interpretation, partisan correlates to those views, a powerful temptation to equate what is misguided or immoral with what is unconstitutional, increased polarization of the political parties, and a lack of commitment to the idea of judicial restraint, decisions not to defend or enforce have the capacity to contribute significantly to the unraveling of the executive branch’s practice of defending federal statutes. This Article also examines the responsibility of the judiciary to provide the executive branch with the operating room that it needs to be able to defend, candidly and with integrity, statutes with whose premises the president and his administration strongly disagree. In the end, the question of the executive branch’s responsibility to enforce and defend statutes is not governed by a legal rule derivable from the Constitution itself, but is a matter of judgment, informed by a welter of historical and institutional concerns

Executive Defense of Congressional Acts

This Article explores the appropriate role of the executive branch in enforcing and defending federal statutes that the president, or executive-branch officials, believe may well be unconstitutional, but for whose constitutional validity reasonable arguments can be advanced. The Article first locates the question of the scope of the executive branch’s responsibility to enforce and defend federal statutes in the larger debate about the extent to which political branches of government are authorized—or even obligated—to make determinations of constitutionality independently of the views of the judiciary. It then reviews the historical practice of the executive branch in defending federal statutes—both the very strong presumption that statutes will be enforced and in turn defended if challenged in court and the departures from that general practice. The Article then considers a range of institutional practices and norms that are significant in considering the question. A number of considerations—including the distinctive capacities of the executive branch, the relationship between career lawyers and political appointees in the executive branch, the virtues of institutional continuity within the executive branch, and the relationship between the executive branch and Congress—reinforce the wisdom of the conventional practice of defending even those statutes that an incumbent administration views as offensive and possibly invalid. Moreover, a regime in which each administration views itself as having significant latitude to refuse to enforce and defend acts of Congress would be considerably less attractive than particular decisions or theories, given that different administrations are likely to have sharply different views about the appropriate occasions for, and the appropriate theories underlying, a refusal to enforce or defend federal statutes. In a world featuring an extremely broad range of views about proper constitutional interpretation, partisan correlates to those views, a powerful temptation to equate what is misguided or immoral with what is unconstitutional, increased polarization of the political parties, and a lack of commitment to the idea of judicial restraint, decisions not to defend or enforce have the capacity to contribute significantly to the unraveling of the executive branch’s practice of defending federal statutes. This Article also examines the responsibility of the judiciary to provide the executive branch with the operating room that it needs to be able to defend, candidly and with integrity, statutes with whose premises the president and his administration strongly disagree. In the end, the question of the executive branch’s responsibility to enforce and defend statutes is not governed by a legal rule derivable from the Constitution itself, but is a matter of judgment, informed by a welter of historical and institutional concerns

Insectivorous birds can see and smell systemically herbivore-induced pines

Several studies have shown that insectivorous birds are attracted to herbivoredamaged trees even when they cannot see or smell the actual herbivores or their feces. However, it often remained an open question whether birds are attracted by herbivore-induced changes in leaf odor or in leaf light reflectance or by both types of changes. Our study addressed this question by investigating the response of great tits (Parus major) and blue tits (Cyanistes caeruleus) to Scots pine (Pinus sylvestris) damaged by pine sawfly larvae (Diprion pini). We released the birds individually to a study booth, where they were simultaneously offered a systemically herbivore-induced and a noninfested control pine branch. In the first experiment, the birds could see the branches, but could not smell them, because each branch was kept inside a transparent, airtight cylinder. In the second experiment, the birds could smell the branches, but could not see them, because each branch was placed inside a nontransparent cylinder with a mesh lid. The results show that the birds were more attracted to the herbivore-induced branch in both experiments. Hence, either type of the tested cues, the herbivore-induced visual plant cue alone as well as the olfactory cues per se, is attractive to the birds

Monodromy representations of branched covering maps between manifolds

A monodromy representation represents a branched covering map between manifolds as a factor of an orbit map. This factorization arises from the monodromy of the branched covering map. We call the domain of the orbit map the monodromy space of the branched covering map. In this thesis a manifold is a connected second countable Hausdorff space that is locally homeomorphic to the Euclidean space. A branched covering map between manifolds is an open, continuous and discrete map. A branch point of a branched covering map is a point at which the map fails to be a local homeomorphism, and the branch set is the set of branch points. The first research question of this thesis considers new existence results of monodromy representations: In what extent does Bersteins and Edmonds construction of a monodromy representation generalize to branched covering maps between manifolds? In article [A] we first consider a class of branched covering maps between manifolds that is natural for the construction. Then we introduce a characterization for the existence of a monodromy representation within this class of maps. The second research question concerns the properties of the monodromy space: What properties can we expect from the monodromy space as a topological space? The monodromy space is a locally connected Hausdorff space by construction. In article [A] we provide an example to show that the monodromy space is not in general a locally compact space. In article [C] we provide further examples to show that a monodromy space that is a locally compact space, is not in general a manifold, a locally contractible space or a cohomology manifold. The third research question concerns new applications of monodromy representations in the study of branched covering maps between manifolds: What consequences does the existence of a monodromy representation have on the branch set of a branched covering map between manifolds? The branch set has by Väisälä codimension more or equal to two. A classical conjecture of Church and Hemmingsen states that the codimension of the branch set is strictly two for a branched covering map from the three sphere to a three sphere. We show together with Pankka in article [B] two partial results in the direction of this conjecture.Berstein ja Edmonds osoittivat, että suljettujen kompaktien monistojen välisillä haarautuvilla peitekuvauksilla on monodromiaesitys. Monodromiaesitys esittää haarautuvan peitekuvauksen ryhmätoiminnasta syntyvän normalisaatiokuvauksen tekijänä. Tässä väitöstutkimuksessa yleistetään Bersteinin ja Edmondsin tulosta monodromiaesityksen olemassaolosta laajemmalle luokalle monistojen välisiä haarautuvia peitekuvauksia, sovelletaan monodromiaesityksen olemassaoloa haarautuvan peitekuvauksen ominaisuuksien tutkimiseen ja perehdytään monodromiaesitykseen liittyvän monodromia-avaruuden ominaisuuksiin

Danger in the Recall

In a popular government, the most difficult problem is to determine a satisfactory method of selecting members of its judicial branch. Where ought such power to be placed? It is a great one. It is said it ought not to be entrusted to irresponsible men. If this means that judges should not be men who do not understand the importance of the function they are exercising, or the gravity of the results their decision may involve, or do not exert energy and sincere intellectual effort to decide according to law and justice, every one must concur. But if it means that judges must be responsible for their judgments to some higher authority, so that for errors made in good faith they incur a personal liability, then we know from centuries of actual experience that the interest of justice, pure and undefiled, requires their immunity. Finality of decision is essential in every branch of the government, or else government cannot go on. This is as true of its judicial branches as of other branches. Therefore, somebody must have the final word in judicial matters, and the only question is who can best exercise this power. The answer to the question must be found in the real character of the function which the judges are to perform

The Lost History of the Political Question Doctrine

This Article challenges the conventional narrative about the political question doctrine Scholars commonly assert that the doctrine which instructs that certain constitutional questions are committed to Congress or to the executive branch has been part of our constitutional system since the early nineteenth century Furthermore scholars argue that the doctrine is at odds with the current Supreme Court\u27s view of itself as the supreme expositor of all constitutional questions This Article calls into question both claims The Article demonstrates first that the current political question doctrine does not have the historical pedigree that scholars attribute to it In the nineteenth century political questions were not constitutional questions but instead were factual determinations made by the political branches that courts treated as conclusive in the course of deciding cases Second when the current doctrine was finally created in the midtwentieth century the Supreme Court used it to entrench rather than to undermine the Court\u27s emerging supremacy over constitutional law Under the current doctrine the Court asserts for itself the power to decide which institution decides any constitutional question With control over that firstorder question the Court can conclude not only that an issue is textually committed to a political branch but also that an issue is committed to the Court itself This analysis turns on its head the assumption of scholars that the current doctrine is at odds with judicial supremacy The modern political question doctrine is a species of ” not a limitation on ” judicial supremac

Realizing Artin-Schreier Covers with Minimal aa-numbers in Positive Characteristic

Suppose $X$ is a smooth projective connected curve defined over an algebraically closed field of characteristic $p>0$ and $B \subset X$ is a finite, possibly empty, set of points. Booher and Cais determined a lower bound for the $a$-number of a $\mathbf{Z}/p \mathbf{Z}$-cover of $X$ with branch locus $B$. For odd primes $p$, in most cases it is not known if this lower bound is realized. In this note, when $X$ is ordinary, we use formal patching to reduce that question to a computational question about $a$-numbers of $\mathbf{Z}/p\mathbf{Z}$-covers of the affine line. As an application, when $p=3$ or $p=5$, for any ordinary curve $X$ and any choice of $B$, we prove that the lower bound is realized for Artin-Schreier covers of $X$ with branch locus $B$.Comment: 25 pages; parts from PROMYS 201