Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to...
Constitutional
As a condition of access to classified information, most employees of the U.S. intelligence community are required to sign nondisclosure agreements that mandate lifetime prepublication review. In essence, these agreements require employees to submit any works that discuss their experiences working in the intelligence community—whether written or oral, fiction...
By “pooling” legal and other resources allocated to different agencies, the executive creates joint structures capable of ends that no single agency could otherwise achieve. Pooling destabilizes core conceptions of administrative law. According to one influential account, for example, Congress exercises control over the bureaucracy through agency design. Pooling,...
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated behaviors that require the weighing...
The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government. It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action and as bargaining chips when striking deals with the state. By contrast, the paradigmatic models of...
“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is...
States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally elected officials. These “takeover boards” are frequently accused of representing...
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This...
18 U.S.C. §641 prohibits the theft or misuse of federal government “things of value.” The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or conversion, and government-produced or government-held information to be government property. The circuits disagree about whether § 641...
Vouching, which developed out of the Supreme Court’s desire to protect the jury’s right to evaluate credibility, traditionally forbids prosecutorial statements designed to enhance or attest to the credibility of a government witness. This Note examines a flavor of vouching unique to cases involving cooperating witnesses. Prior to testifying, cooperating witnesses...