The Courts, Congress, and Executive Policy-Making: Notes on Three Doctrines

The PRESTO sequence is a well-known 3-D fMRI imaging sequence. In this sequence the echo planar imaging technique is merged with the echo-shift technique. This combination results in a very fast image acquisition, which is required for fMRI examinations of neural activation in the human brain. The aim of this work was to use the basic Cartesian PRESTO sequence as a framework when developing a novel trajectory using a non-Cartesian grid. Our new pulse sequence, PRESTO CAN, rotates the k-space profiles around the ky-axis in a non-Cartesian manner. This results in a high sampling density close to the centre of the k-space, and at the same time it provides sparser data collection of the part of the k-space that contains less useful information. This "can- or cylinder-like" pattern is expected to result in a much faster k-space acquisition without loosing important spatial information. A new reconstruction algorithm was also developed. The purpose was to be able to construct an image volume from data obtained using the novel PRESTO CAN sequence. This reconstruction algorithm was based on the gridding technique, and a Kaiser-Bessel window was also used in order to re-sample the data onto a Cartesian grid. This was required to make 3-D Fourier transformation possible. In addition, simulations were also performed in order to verify the function of the reconstruction algorithm. Furthermore, in vitro tests showed that the development of the PRESTO CAN sequence and the corresponding reconstruction algorithm were highly successful. In the future, the results can relatively easily be extended and generalized for in vivo investigations. In addition, there are numerous exciting possibilities for extending the basic techniques described in this thesis

The Courts, Congress, and Executive Policy-Making: Notes on Three Doctrines

My starting point is an increasingly common description of reality: that there has been a continuing flow of policy-making power from Congress to the executive; that as a result the executive makes major policy which has not been affirmatively endorsed by Congress; and that this is a significant problem in our constitutional system. Against the background of frequent arguments that Congress\u27 role in policy-making should be strengthened and protected to assure an appropriate allocation of power in our system, I consider here whether the courts should play some role in furthering that objective. The question is an extremely complex one. A persuasive answer would require a full analysis of various legal doctrines; questions of political and constitutional theory; the actual behavior of political and administrative bodies in making policy; the practicality of\u27 greater congressional policy-making in various areas; and all of the alternative means of controlling executive policy-making. This conference paper, prepared over a few weeks by a practicing attorney relatively new to the specific subject at hand, is obviously not such an effort. My purpose at this point is simply to be suggestive about several legal doctrines—to set forth a position which, I believe, at least deserves further consideration, even though I recognize that ultimately it may not prove fruitful. In only a very preliminary and tentative way, then, I argue that the courts can and should play some role in stemming the flow of policy-making power away from Congress. The judicial weapons are limited, however, and the appropriate judicial role at most a modest one; and the effort is useless unless Congress is willing and able, with a little encouragement, to reclaim a more decisive policy-making role. I discuss three methods that the courts have used or might use to curb executive policy-making and recall Congress to a greater policy-making role: applying the delegation doctrine narrowly construing statutes which do not clearly and explicitly authorize executive policy-making and construing statutes so as to preempt any inherent presidential power to make policy. In a brief final section, I add some more general observations on the subject. Although the focus of this symposium is the executive branch, my thoughts are at least as applicable to policy-making by the independent agencies, and therefore I refer to them as well in my discussion

Realism in Separation of Powers Thinking

The basic difficulty of defining a judicial role in enforcing structural relationships between the branches of the national government is that the various policies informing those relationships seem quite contradictory: separated powers, yet shared and overlapping powers; independence of branch functions, yet functions that check and balance each other; and, in the duality with which Paul Verkuil begins his essay, promoting efficient specialization, but avoiding the tyranny of too much efficiency. Given these dualities, the courts have three options. They must either adopt simplifying mediating principles, or engage in some form of case-by-case balancing to assess the tradeoffs in particular situations, or abandon the project of trying to enforce separation of powers norms. The Supreme Court in recent years has often invoked mediating principles based on a textual literalism that is very unsatisfactory. Even taking account of the valuable prophylactic functions that rigid, even simplistic, rules can sometimes perform, the Court\u27s approach in cases like Bowsher v. Synar, INS v. Chadha, and Northern Pipeline Construction Co. v. Marathon Pipe Line Co., does not inspire praise. These opinions suffer the sort of flaw that law cannot survive: they describe a normative and actual universe that we all know to be false. Their rigid categories of branch power simplistically disregard the real complexities of government structure as we know it and as our country has known it for a very long time

The U.S.-China Rule of Law Initiative

My subject is the U.S.-China Rule of Law Initiative, a government-to-government effort with which I was personally involved as a U.S. government official. In discussing this Initiative, I hope to provide a little indirect light on two broader matters that are far more important than the fate of one U.S. government program: (1) What are the possibilities and prospects for legal reform in China?; and (2) what role can foreign entities play, and what role is appropriate for foreign entities to play, in the legal reform process in China

Thurgood Marshall

Thurgood Marshall\u27s life as a civil rights lawyer inspired my decision to go to law school, so it was the greatest of dreams fulfilled when I came to work as his law clerk at the Supreme Court. Now, as he leaves the Court, it is an honor to mark his retirement in these pages. Marshall is an extraordinary figure in American legal history. He has lived many lives—indeed, while others marvel over his professional durability at the age of eighty-three, I actually think of him as having compressed more than a hundred years of living into that time span. He was the country\u27s greatest civil rights lawyer during the greatest period for civil rights advances in our history, and in that role he lived a life of relentless intensity and danger, and one of transforming achievement. He was a United States Court of Appeals Judge. He was Solicitor General of the United States (his favorite job, he has often said with complete seriousness—an advocate\u27s job in which he spoke for the United States, not simply a faction or insurgent part of the whole). Finally, he became a Justice on the Supreme Court of the United States during one of its most dramatic periods of change. While he was a top government official for much of this time—an insider and a colleague of the advantaged—he spent his entire career trying to protect the disadvantaged and identifying with them

The Triumph and Transformation of Antidiscrimination Law

Brown both crystallized and launched a revolution in the way our society understands what equality requires, a revolution that is ongoing. I want to discuss two basic aspects of this revolution. The first is that we have witnessed a triumph of the antidiscrimination model, by which I mean that more and more areas of social life are now viewed as raising a problem of discrimination —rather than viewed as raising some other kind of problem, or raising no problem at all. My second claim is that at the very time that the nondiscrimination idea has been emerging triumphant as a way of addressing matters as diverse as race, gender, age, religion, sexual orientation, and disability, the meaning of nondiscrimination has itself been transformed. Originally, nondiscrimination meant an obligation to treat people the same. But today, nondiscrimination is coming to mean accommodating differences. This transformation has occurred across the board, in all the subject matter areas where nondiscrimination ideas have now come to be applied—and when these changes are seen as a kind of unity, they are really quite striking, and are having a profound impact on American life

The Triumph and Transformation of Antidiscrimination Law

B rown both crystallized and launched a revolution in the way our society understands what equality requires, a revolution that is ongoing. I want to discuss two basic aspects of this revolution. The first is that we have witnessed a triumph of the antidiscrimination model, by which I mean that more and more areas of social life are now viewed as raising a problem of discrimination —rather than viewed as raising some other kind of problem, or raising no problem at all. My second claim is that at the very time that the nondiscrimination idea has been emerging triumphant as a way of addressing matters as diverse as race, gender, age, religion, sexual orientation, and disability, the meaning of nondiscrimination has itself been transformed. Originally, nondiscrimination meant an obligation to treat people the same. But today, nondiscrimination is coming to mean accommodating differences. This transformation has occurred across the board, in all the subject matter areas where nondiscrimination ideas have now come to be applied—and when these changes are seen as a kind of unity, they are really quite striking, and are having a profound impact on American life

Identification of antisense nucleic acid hybridization sites in mRNA molecules with self-quenching fluorescent reporter molecules

We describe a physical mRNA mapping strategy employing fluorescent self-quenching reporter molecules (SQRMs) that facilitates the identification of mRNA sequence accessible for hybridization with antisense nucleic acids in vitro and in vivo, real time. SQRMs are 20–30 base oligodeoxynucleotides with 5–6 bp complementary ends to which a 5′ fluorophore and 3′ quenching group are attached. Alone, the SQRM complementary ends form a stem that holds the fluorophore and quencher in contact. When the SQRM forms base pairs with its target, the structure separates the fluorophore from the quencher. This event can be reported by fluorescence emission when the fluorophore is excited. The stem–loop of the SQRM suggests that SQRM be made to target natural stem–loop structures formed during mRNA synthesis. The general utility of this method is demonstrated by SQRM identification of targetable sequence within c-myb and bcl-6 mRNA. Corresponding antisense oligonucleotides reduce these gene products in cells