Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?

Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court

Two Steps to Obfuscation

This note addresses the historical antecedents of the 1998 PageRank measure of centrality. An identity relation links it to 1990-1991 models of Friedkin and Johnsen

The Constitutionality of a National Wealth Tax

Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests. The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and fairness. Tax policy provides one central context in which collective judgments about fundamental values help form national identity. We believe that a national wealth tax (that is, a tax on individuals’ net worth) should be among the policy options under consideration to support vital infrastructure, social service, and other governmental functions. Although not a new concept, a wealth tax may be an idea whose time has come, as inequality soars toward record highs. Our aim in this Essay is to help ensure that a wealth tax is among the policy options available to Congress by challenging a common assumption that has unduly harmed its prospects: the belief that the U.S. Constitution effectively makes a national wealth tax impossible. We believe this conventional wisdom is wrong and its casual repetition has been harmful. Devising a progressive tax system that effectively taxes the wealthy is notoriously difficult, but whether a wealth tax is part of that system should depend upon the policy choices of democratically elected representatives, not faulty constitutional understandings

A type system for components

In modern distributed systems, dynamic reconfiguration, i.e., changing at runtime the communication pattern of a program, is chal- lenging. Generally, it is difficult to guarantee that such modifications will not disrupt ongoing computations. In a previous paper, a solution to this problem was proposed by extending the object-oriented language ABS with a component model allowing the programmer to: i) perform up- dates on objects by means of communication ports and their rebinding; and ii) precisely specify when such updates can safely occur in an object by means of critical sections. However, improper rebind operations could still occur and lead to runtime errors. The present paper introduces a type system for this component model that extends the ABS type system with the notion of ports and a precise analysis that statically enforces that no object will attempt illegal rebinding

Monitoring and mentoring strategies for diffusing sustainability in supply networks

Purpose - This paper aims to investigate the impact of monitoring and mentoring strategies on sustainability diffusion within supply networks through focal companies and how suppliers engage in implementing these strategies. Design/methodology/approach - The paper reports on three in-depth case studies conducted with focal companies and their suppliers. An interaction approach was adopted to guide the analysis of focal companies’ strategies for implementing and diffusing sustainability in supply networks. Findings - The monitoring strategy impacts sustainability diffusion at the dyadic level, while the mentoring strategy is a prerequisite for the diffusion of sustainability at the supply network level. The findings suggest that coupling monitoring with mentoring can lead to diffusion beyond first-tier suppliers. Interaction intensity, supplier proactiveness and mindset change facilitate sustainability diffusion in supply networks. Research limitations/implications - The authors suggest more research be conducted on specific practices within monitoring and mentoring, as some of these imply very different levels of commitment and interaction. Practical implications - The paper suggests that in the future, companies will be increasingly called upon to adopt cooperative initiatives to enable the diffusion of sustainability in supply networks. Originality/value - The contribution of the paper lies in its identification of the impacts of monitoring and mentoring strategies on the diffusion of sustainability in networks, revealing different supplier engagement in these strategies, which may foster or hinder sustainability diffusion.©2020 Emerald Publishing Limited. This manuscript version is made available under the Creative Commons Attribution–NonCommercial 4.0 International (CC BY–NC 4.0) license, https://creativecommons.org/licenses/by-nc/4.0/fi=vertaisarvioitu|en=peerReviewed

When Responsibilities Collide: Humanitarian Intervention, Shared War Powers, and the Rule of Law

The use of military force to respond to a foreign humanitarian crisis raises profound legal questions, especially when force is not authorized by the U.S. Congress or the U.N. Security Council. President Clinton\u27s use of air strikes in Kosovo, President Obama\u27s use of air strikes in Libya, and his threat of force following Syrian President Assad\u27s use of chemical weapons against the Syrian people all responded to powerful humanitarian needs-but serious questions about their legality remain. Drawing upon these case studies, Professor Harold Koh proposes a framework that would find some such interventions lawful, even without congressional or Security Council authorization-and even for periods that exceed the sixty-day limit Congress has imposed through the War Powers Resolution. Professor Koh\u27s proposal would expand presidential war powers and diminish congressional constraints. Professor Koh and I agree on many fundamentals: the basic scope of the President\u27s constitutional authority to initiate the use of force, the constitutionality of the sixty-day clock, the government\u27s duty to explain the legal basis for its major actions, and the vital need for U.S. leadership to address humanitarian crises including, in extreme circumstances, the lawful use of military force. This Article contends, however, that Koh\u27s proposed legal standards do not satisfy the U.S. Constitution\u27s framework of shared war powers as implemented by Congress, an analysis aided by application of Justice Robert Jackson\u27s three-zone Youngstown framework. Most important, I believe Koh misreads the War Powers Resolution to exempt humanitarian interventions that otherwise clearly would constitute hostilities. A humanitarian motivation no more exempts a use of force than would a counterterrorism motivation. This Article concludes by looking beyond the legality of humanitarian interventions to the general standards and processes that guide government lawyers who advise the Executive Branch. During the Obama Administration, extreme partisan obstruction has prevented congressional action on important issues. Unilateral presidential action within the President\u27s authority can be an appropriate response, but not so the calls to loosen standards to allow presidential action of reasonable or plausible legality. The George W. Bush Administration\u27s excessive assertions of war powers to justify unlawful counterterrorism policies reveal the potential risks of a lowered standard, as well as of a shift toward greater presidential war powers. Short-term challenges even as compelling as humanitarian crises and terrorism must not blind us to the long-term costs of undermining rule-of-law values and our constitutional balance of powers

Should Ideology Matter in Selecting Federal Judges? Ground Rules for the Debate

A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge\u27s ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging debate that ignores history and reality, uses misleading language, poses false choices, misconstrues judicial independence, or is otherwise unprincipled and partisan. This essay was published as part of a 2005 symposium on Jurocracy and Distrust: Reconsidering the Federal Judicial Appointments Process

The Essence of a Free Society : The Executive Powers Legacy of Justice Stevens and the Future of Foreign Affairs Deference

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by Justice Stevens’s jurisprudence, a post-9/11 academic debate explores the deference due the Executive’s statutory and treaty interpretations on foreign affairs matters, appropriately favoring an intermediate measure of foreign affairs deference that provides a meaningful judicial check while respecting the Executive’s constitutional authority and expertise. This Article highlights the Bush Administration’s extraordinarily flawed theory and often secret claims of authority to contravene federal statutes that effectively forfeited its claim to judicial deference. Prevailing narratives that emphasize continuity—between the Bush and Obama policies as well as presidential power aggrandizements—underappreciate the unusual, arguably unique, nature of the Bush approach’s threat to the rule of law. Future judicial review of foreign affairs matters might not be as robust as some hope and others fear. Only the combination of judicial review and continued vigilance from nonjudicial sources can effectively check the Executive during times of war and crisis. The Article concludes by briefly assessing President Obama’s performance on rule-of-law issues that might never face judicial review