Archive for the ‘law professors’ Category

Don’t Trust Big Name Law Profs to Know What They’re Talking About

April 8th, 2009 No comments

A commentor at VC gives an example of how you can’t trust a big-name law professors to have his facts straight about the key point of his argument:

“According to Tushnet, there’s nothing for the AG to do until a bill lands on the President’s desk.” Absolutely not correct. (1) Obama claimed during the campaign that he would try to minimize conflicts between the President and Congress by having “his” OLC advise him and Congress of constitutional objections at early stages of bill drafting. (2) Regardless of point #1, OLC has served this function since its inception, and the reason it issued this opinion is that it was serving this function as a matter of course — this opinion was in no way unusual; in fact, OLC reviews all major items of legislation in their early stages; it has a position purely for this purpose, known as the “bill comment” deputy or “legislative” deputy (Deputy Assistant Attorney General, or DAAG). (3) Regardless of points #1 and #2, having OLC offer its views before bills become final is good policy and good government, as only the Justice Department (as compared to individual Senators and Representatives) has the budget and staff capability to field a standing body of con law experts, and having those experts advise Congress provides both a valuable “second look” and a way to head off legislative-executive conflicts before they reach an advanced stage where positions can harden artificially. (Con law isn’t the only area of expertise for which OLC serves this function for Congress but the others aren’t implicated in this question, so I won’t digress.)

Tushnet, therefore, is wrong as a matter of Obama’s campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes — he’s out!

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International Law

April 6th, 2009 No comments

Eric Posner is good at VC on the liberal, Kohish view of international law as mere hypocrisy. He explains the academic argument by Koh: international public opinion has strong actual effect, and ends up forcing the US government to bend to its will, and so is actual law.

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OLC’s Dawn Johnsen

February 27th, 2009 No comments

National Review has an article on IU Prof. Dawn Johnsen’s confirmation hearings (OLC)with links to a Slate article on her.

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