The Political Question Doctrine and International Law
Curtis A. Bradley 91 Geo. Wash. L. Rev. 1555 Under the political question doctrine, some issues are deemed to be inappropriate for judicial resolution. The modern version of the doctrine is typically traced to the Supreme Court’s 1962 decision in Baker v. Carr, in which the Court listed six reasons why an issue might be... Read More
The Vesting Clauses and Foreign Affairs
Michael D. Ramsey 91 Geo. Wash. L. Rev. 1513 An enduring puzzle of U.S. constitutional law is how the Constitution divides foreign affairs powers among the branches of government. The Constitution does not refer to a single foreign affairs power, and although it allocates some specific foreign affairs powers, it seems to omit some important... Read More
The Reliance Interest in Foreign Affairs
Jide Nzelibe 91 Geo. Wash. L. Rev. 1476 This Article argues that foreign affairs polarization in the United States is likely to result in increased judicial oversight in foreign affairs. The reasons are fivefold. First, increased polarization often leads to dramatic swings in foreign policy across electoral cycles, which is likely to disrupt the reliance... Read More
Derivative Foreign Relations Law
Jean Galbraith 91 Geo. Wash. L. Rev. 1449 We treat U.S. foreign relations law as a discrete body of law—and it is. But it is not independent. To the contrary, it relies on the same institutional actors that govern more generally: the President, Congress, the federal judiciary, administrative agencies, and subnational governments. And far from... Read More
The 21st Century National Security Constitution
Harold Hongju Koh 91 Geo. Wash. L. Rev. 1391 Even as the Biden Administration’s foreign policy unfolds, in 21st Century practice, foreign relations law seems to have largely become national security law. Virtually all foreign affairs issues have been reframed into national security terms. And because so much of foreign affairs law seems to have... Read More
Previews for the 2023 October Term of the Supreme Court
After a consequential two years in which the law of gun rights, substantive due process, religious liberty, and affirmative action, among others, was made anew, the Supreme Court's October 2023 Term features a wide array of cases that will refine the scope of its "history and tradition" approach in the Second Amendment context, contemplate the intersection of social media and the First Amendment, reconsider the foundations of the modern administrative state, and much more.
Drawing a Line: How Energy Law Can Provide a Practical Boundary for the Rapidly Expanding Major Questions Doctrine
Kyle Pasucci 91 Geo. Wash. L. Rev. 1360 Administrative agencies must respond to innovation in their field of expertise to keep their regulatory approach efficient and effective. However, the recent expansion of the major questions doctrine threatens to undermine agency capacity to respond to new technology and new practices. Recently, the Supreme Court has endorsed... Read More
Set Up to Fail: National Labor Relations Board
Mher Mkrtchian 91 Geo. Wash. L. Rev. 1330 The National Labor Relations Board (“NLRB”) can no longer be described as an independent agency. The structural separation of the agency’s adjudicative and prosecutorial powers under the Taft-Hartley Amendments to the Wagner Act effectively permits the General Counsel to control a lion’s share of the agency’s policymaking... Read More
Pharmaceutical Patents and Adversarial Examination
Dmitry Karshtedt 91 Geo. Wash. L. Rev. 1259 Proposals to improve the work quality of the U.S. Patent and Trademark Office (“PTO” or “USPTO”) continue to generate vigorous debate. On one hand, several scholars maintain that the short times allotted to the examination of patent applications and the agency’s other operational constraints yield numerous patents... Read More
Beyond APA Section 553: Hayek’s Two Problems and Rulemaking Innovations
Yoon-Ho Alex Lee 91 Geo. Wash. L. Rev. 1215 Section 553 of the Administrative Procedure Act of 1946 is hailed as “one of the greatest inventions of modern government.” One reason for this commendation is that section 553 addresses a fundamental problem in policy- making that is famously attributed to F.A. Hayek: the problem of... Read More