Emory Law Journal

Volume 59Issue 2
The 2009 Randolph W. Thrower Symposium, Executive Power: New Directions for the New Presidency?
Articles and Essays

Keynote Address: The Intra-Executive Separation of Powers

Paul D. Clement | 59 Emory L.J. 311 (2009)

My focus will be on how executive power is best allocated and divided in discharging one very important executive function, and that is the function dealing with the law and taking care that the law be faithfully executed, principally through the Justice Department. Second, my focus will be practical. There are others on some of the later panels who are better equipped and better able to discuss this as a purely theoretical matter. So one of the things I hope to add is a practical perspective based on the last seven and a half years that I spent in the Justice Department, all of which I spent in the Office of the Solicitor General.

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Practice, Theory, and the War on Terror

Fred C. Zacharias | 59 Emory L.J. 333 (2009)

This Essay considers whether lawyers should offer legal advice that clients request and will pay for, even when giving that advice might facilitate wrongful behavior. As a vehicle for analyzing the issue, this Essay discusses memoranda written for the Administration of President George W. Bush by Deputy Assistant Attorney General John Yoo, who advised that the physically and psychologically abusive interrogation of enemy combatants in Afghanistan was, or might be, legally justifiable. This Essay is neither intended to critique or defend the legal analysis underlying the so-called “torture memos,” nor to serve as a referendum on Yoo’s political views. Rather, this Essay analyzes Yoo’s particular role as a lawyer and what effect it should have had on how he conducted his work.

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The Federal Inaction Commission

Glen Staszewski | 59 Emory L.J. 369 (2009)

This Article proposes the establishment of a “Federal Inaction Commission” (FIC). This new, independent agency would be charged with investigating and reviewing the inaction of Executive Branch agencies and reporting its findings and recommendations to elected officials and the public. The FIC would provide many of the same benefits that would result from increasing the availability of judicial review of non-enforcement decisions and other regulatory inaction. At the same time, the FIC would be in a position to minimize the practical disadvantages that have been identified with judicial review of such decisions. Not only would the establishment of the FIC therefore provide a more workable solution to the problem of agency inaction than other commentators have offered, but the agency would also provide a political solution to what the staunchest defenders of the status quo have maintained is solely a “political” problem.

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The Interdependent Relationship Between Internal and External Separation of Powers

Gillian E. Metzger | 59 Emory L.J. 423 (2009)

In this Essay, I first describe internal separation of powers mechanisms and the constitutional role they can play. I next take up the question of whether these constraints are effective checks on Executive Branch overreaching and emphasize the mutually reinforcing relationship between such internal constraints and external checks on the Executive Branch. Finally, I discuss the general failure of current separation of powers doctrine to directly connect internal and external constraints and analyze whether including such a linkage would be appropriate.

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Constitutional Theory and the Future of the Unitary Executive

Sotirios A. Barber, James E. Fleming | 59 Emory L.J. 459 (2009)

This Essay outlines part of a larger project on executive power. Like that larger work, these remarks are as much about the future of constitutional theory—the form it should take and the questions it should address—as they are about the future of the unitary executive.

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Lessons from California’s Recent Experience with Its Non-Unitary (Divided) Executive: Of Mayors, Governors, Controllers, and Attorneys General

Vikram David Amar | 59 Emory L.J. 469 (2009)

It is often said that one of the great advantages of a federalist system is that states can operate as laboratories of democracy, experimenting with common law and statutory frameworks in ways that provide useful policy information to other states as well as the federal government. The utility of this framework is not limited to the common law or experiments by legislatures; it applies with equal, albeit underappreciated, force to matters of constitutional law. Thus, in a symposium dedicated to examining the meaning and future of the federal “unitary executive,” the experience of states—almost all of which reject a unitary executive model—warrants some inquiry.

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Scaling Waller: How Courts Have Eroded the Sixth Amendment Public Trial Right

Daniel Levitas | 59 Emory L.J. 493 (2009)

American courts and legal commentators have long praised the Sixth Amendment public trial right, but courts often lack the willingness to enforce it. Although the Supreme Court has consistently held that violations of the public trial right belong to an exceedingly small class of constitutional errors requiring reversal, appellate courts persist in upholding improper courtroom closures even when the record shows that courts below have violated the applicable constitutional standard. When criminal trials are fatally fouled by structural, constitutional error of this kind, the reluctance of appellate courts to reverse is damaging in two ways—it encourages repetition of the same mistake, and it denigrates core values of individual rights that underlie our system of justice. This Comment argues for corrective action by explaining the rules governing courtroom closure, highlighting the errors often made by trial and appellate courts, and detailing the legal basis for more rigorous enforcement of the public trial right.

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Weighing the Value of Information: Why the Federal Government Should Require Nutrition Labeling for Food Served in Restaurants

Devon E. Winkles | 59 Emory L.J. 549 (2009)

Obesity has become a growing public health concern in the United States. State and local policymakers, as well as the federal government, have proposed and implemented a variety of measures to curb consumption of unhealthy food and promote healthy lifestyles. Providing nutrition information to consumers is one strategy that has been implemented, most notably in the Nutritional Labeling and Education Act of 1990. Such a strategy should again be employed to address overconsumption and over-marketing of high calorie food at restaurants, as well as to remedy the patchwork of menu labeling requirements that has been created in recent years and continues to expand. This Comment uses an interdisciplinary approach to weigh the regulatory design options available to lawmakers to address obesity, and particularly, the role consumption of restaurant food plays in contributing to obesity.

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