75 research outputs found

    Precedent in a Polarized Era

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    My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current moment

    Reliance on Executive Constitutional Interpretation

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    Federal executive officials routinely authorize government personnel to violate otherwise applicable laws based on contestable constitutional interpretations. This practice raises an important and unresolved question, one that arose in connection with the George W Bush Administration\u27s interrogation practices and that could easily arise again: What legal effect, if any, should internal executive guidance on constitutional questions have in subsequent civil or criminal litigation against officials who relied on it? This Article systematically analyzes this question. Building on existing case law in related areas, it argues that any sound reliance defense in this area must balance three competing constitutional considerations: (1) a fairness principle, reflecting the intuitive unfairness of penalizing officials who relied in good faith on internally authoritative legal guidance; (2) an antisuspending principle, reflecting separation-of-powers limitations on the executive branch\u27s authority to eliminate or disregard applicable statutory constraints; and (3) a departmentalism principle, reflecting the longstanding assumption that the executive branch holds at least some authority to interpret the Constitution independently from courts in performing executive functions. Contrary to past accounts, which have tended to argue categorically against or in favor of a general reliance defense, properly balancing these competing considerations should yield a set of calibrated defenses that vary according to the nature of the executive determination and the character of the litigation
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