AuthorLRIRE

Abandoning Presidential Administration: A Civic Governance Agenda to Promote Democratic Equality and Guard Against Creeping Authoritarianism

Abstract Upon assuming the presidency, Joe Biden is likely to enjoy limited congressional support for his legislative agenda.  Democrats believe they have a good playbook for this situation: “presidential administration.”  Coined by now–Justice Kagan, presidential administration endorses the use of unilateral executive action to advance the president’s policy priorities.  We argue that...

National Security Lawyering in the Post-War Era: Can Law Constrain Power?

Abstract Do we face a rule of law crisis in U.S. national security law? The rule of law requires that people and institutions are subject and accountable to law that is fairly applied and enforced. Among other things, this requires that those bound by the law not be the judges in their own case. Does national security lawyering meet this standard? And if not, what should be done about that? This...

Deploying Race, Employing Force: ‘African Mercenaries’ and the 2011 NATO Intervention in Libya

This Article reflects on the ongoing synergies between international law, race, and empire, as they are articulated in the regulation of mercenarism. It does so by examining the role of the racialized and gendered narratives about “African mercenaries” in the context of the UN Security Council authorization of the 2011 NATO intervention in Libya. By recovering the efforts of the Global South to...

The Wrongful Death of an Indian: A Tribe’s Right to Object to the Death Penalty

Abstract This Essay responds to the execution of Lezmond Mitchell, the only American Indian on federal death row.  The execution was carried out on August 26, 2020 over the objection of both members of the victims’ family and the Navajo Nation.  This Essay takes the clear position that because the Federal Death Penalty Act of 1994 requires tribal consent to seek the death penalty for murder, or...

#SoWhiteMale: Federal Procedural Rulemaking Committees

Abstract Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white.  That is 94 percent of the committee membership.  Of that same group, 513—or 81 percent—have been white men.  Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception.  The...

“Blurred Lines” to “Stairway to Heaven”: Applicability of Selection and Arrangement Infringement Actions in Musical Compositions

In 2015, the “Blurred Lines” verdict catapulted the issue of music copyright infringement into the news. The Ninth Circuit upheld the jury verdict in favor of the Marvin Gaye estate in 2018, shocking the legal and music communities who worry that songwriters can now copyright a vibe. Typically, copyright infringement occurs if someone copies a “substantial” amount of original and protected...

Judicial Racism And Judicial Antiracism: Retelling The Dred Scott Story

Abstract This Essay retells the Dred Scott story as a set of intersecting stories about judicial racism and judicial antiracism.  Part I defines racism and antiracism, then discusses how racist and antiracist ideas are realized through government power.  Next, this Essay visits one of the most prominent moments of judicial racial history: the story of Dred Scott.  Part II walks through the...

“You Write in Cursive, I Write in Graffiti”: How #BlackLivesMatter Reorients Social Movement Legal Theory

This Comment compares and contrasts: (1) analyses and recommendations posited by longstanding Constitutional scholars discussing social movements, with (2) the efforts and achievements by the Black Lives Matter movement. Using the scholarship of Jack Balkin and Reva Siegel as examples, this Comment argues that their prescriptions for social movements that seek to affect changes in constitutional...