Introduction
In my Note, I propose an alternative to the presidential signing statement that has been hotly debated in the literature in recent years. By re-examining an often-forgotten constitutional method for enacting laws, I conclude that when the President has certain doubts about the constitutionality of a bill Congress has presented, the President should instead allow the bill to become law unsigned and issue an accompanying nonsigning statement.
I. The Signing Statements Controversy
The recent debate about signing statements fully engaged after President George W. Bush issued a statement in 2005 that appeared to repudiate anti-torture provisions in a bill he had just signed into law. Although presidents since James Monroe had issued signing statements for various purposes, President Bush’s style of signing statements particularly rankled critics of the practice.
Bush routinely issued statements with vague, boilerplate language invoking his power as commander-in-chief or sounding in the unitary executive theory… Read More »
- Cornell Law Review
- 23 November 2011
- Law Review Note
A Third Way: The Presidential Nonsigning Statement
Ross Wilson
- N.Y.U. Law Review
- 18 November 2011
- Law Review Article
Sorting Guilty Minds
Francis Shen & Morris Hoffman & Owen Jones & Joshua Greene & René Marois
Every crime consists of an illegal act committed with a guilty mind. Proving the act alone is rarely enough because the law typically does not criminalize accidents. Yet while the distinction between accidents and non-accidents seems straightforward, punishing the “guilty mind”—as students quickly learn and practicing attorneys well know—is much… Read More »
- Stanford Law Review
- 16 November 2011
- Law Review Article
Fortuity and Forensic Familial Identification
Natalie Ram
On July 7, 2010, Los Angeles police arrested a suspect in the Grim Sleeper murders, so-called because of a decade-long series of break-in killings. The critical lead in the case: a genetic profile in the state’s DNA database that was similar, but not identical, to the killer’s DNA. The partial… Read More »
- Cornell Law Review
- 07 November 2011
- Law Review Note
Employment Discrimination Plaintiffs in the District of Maryland
Charles A. Brown
I. Introduction
Research into employment discrimination litigation intensified in the early 1990s as such litigation began to account for an increasingly large part of the federal docket. Employment discrimination cases rose as a percentage of the federal docket until reaching a peak of about 10% in 2001. Since then, this… Read More »
- U. Chicago Law Review
- 02 November 2011
- Law Review Article
The Alien Tort Statute and the Law of Nations
Anthony J. Bellia, Jr. & Bradford R. Clark
Although courts and commentators have offered a wide range of theories regarding the Alien Tort Statute(ATS), the original meaning of the statute has remained elusive. As enacted in 1789, the ATS provided that “the district courts . . . shall [ ] have cognizance, concurrent with the courts of the several States, or… Read More »
- Duke Law Journal
- 24 October 2011
- Law Review Article
Coming off the Bench: Legal and Policy Implications of Proposals To Allow Retired Justices To Sit By Designation on the Supreme Court
Lisa McElroy & Michael C. Dorf
In her first term as an Associate Justice of the Supreme Court of the United States, Elena Kagan recused herself from roughly one-third of the cases on the Court’s docket. Although Justices do not typically divulge their grounds for recusing, the reason for all of these recusals was obvious: Kagan… Read More »
- Stanford Law Review
- 23 October 2011
- Law Review Note
A New Approach to Nineteenth-Century Religious Exemption Cases
Wesley J. Campbell
In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment does not afford individuals a right to receive exemptions from neutral and generally applicable laws that incidentally burden their exercise of religion. Although Justice Scalia wrote the majority opinion, the Court’s decision came without any discussion… Read More »
- Cornell Law Review
- 17 October 2011
- Law Review Article
Foreign Citizens in Transnational Class Actions
Linda Sandstrom Simard & Jay Tidmarsh
When, if ever, should foreign citizens be included as members of American class actions? The question is not a new one. Judge Friendly first raised it thirty-five years ago in Bersch v. Drexel Firestone, Inc. Since Bersch, courts have tied the answer to res judicata and the recognition of judgments:… Read More »
- Cornell Law Review
- 14 October 2011
- Law Review Article
Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney
Jeffrey Bellin & Junichi Semitsu
In Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet, the Court left in place the talismanic protection available to those who might misuse the peremptory challenge— the unbounded collection of justifications that courts, including the Supreme Court, accept as “race-neutral.” Read More »
- Northwestern Law Review
- 03 October 2011
- Law Review Article
Ending the Korematsu Era: A View from the Modern War on Terror Cases
Craig Green - Temple University Beasley School of Law
During much of the past decade, government officials have prosecuted a “Global War on Terror” that — they claim — is different from all prior conflicts and is unhinged from ordinary legal limits. As early as September 2001, however, such claims of novelty were accompanied by arguments about history and… Read More »