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Peter M Shane

Ohio State University, Law, Faculty Member

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Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University, where he teaches constitutional and administrative law. His many publications include Separation of Powers Law: Cases and Materials (with Hal Bruff and Neil Kinkopf) (Carolina Academic Press, 4th ed., 2018), and Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago, 2009). Peter served as an attorney-adviser in the DOJ Office of Legal Counsel and as an assistant general counsel in OMB, before entering full-time teaching in 1981. Named a Distinguished University Scholar in 2011, he has been a visiting faculty member at Harvard, Duke, Boston College, and Villanova.
Phone: 614-688-3014
Address: OSU Moritz College of Law
55 West 12th Avenue
Columbus, OH 43210

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Papers by Peter M Shane

Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis

The user has requested enhancement of the downloaded file.

Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking

We are living through a period of intense debateamong both academics and politicians-regarding th... more We are living through a period of intense debateamong both academics and politicians-regarding the appropriate presidential role in supervising our vast national bureaucracy. That debate has two distinct, if overlapping, dimensions. One is constitutional: does the Constitution, read historically or otherwise, command a particular model of presidential supervision?' The second addresses questions of policy: does government function best when the President enjoys plenary authority over the entire policy output of the bureaucracy? 2 Or is government more effective when policy making influence is shared between the President and Congress, and among high-level bureaucratic administrators? The Reagan and Bush Administrations took explicit positions on both sets of issues. On the doctrinal side, the Meese Justice Department expressly promulgated a systematic creed of constitutional interpretation. 3 This Reagan-* Dean and Professor of Law, University of Pittsburgh School of Law. I would like to thank my fellow panelists for their helpful reactions to this paper, and Donna Miller, Iowa '95, for her research assistance. I am grateful also to the University of Iowa Law School Foundation, which supported part of this research in my waning days in Iowa City. 1. Professor Steven G. Calabresi, for example, argues that the Constitution dictates that the President have plenary control over all officials who help implement the laws. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995). By way of contrast, Professors Larry Lessig and Cass Sunstein argue that, as an originalist matter, the Constitution authorized Congress "to limit the exercise of administrative powers as a condition to its grant of these powers to any officer of the government." Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 54 (1994). 2. Despite their view that the Constitution did not originally command strong Presidential control over all administration, Professors Lessig and Sunstein would answer this particular question in the affirmative-and reinterpret the Constitution in light of that conclusion. Lessig & Sunstein, supra note 1, at 93-106.

Returning Separation of Powers Analysis to its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Penalties

I n thoughtful dicta uttered 60 years ago, Justice Frankfurter observed that even a legislature c... more I n thoughtful dicta uttered 60 years ago, Justice Frankfurter observed that even a legislature clear as to its regulatory objectives faces hard choices in selecting remedies for the implementation of those objectives: How to effectuate policy-the adaptation of means to legitimately sought ends-is one of the most intractable of legislative problems. Whether proscribed conduct is to be deterred by qui tam action or triple damages or injunction, or by criminal prosecution, or merely by defense to actions in contract, or by some, or all, of these remedies in combination, is a matter within the legislature's range of choice. Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience. 1

How Obama’s Immigration “Executive Action” Respects the Rule of Law

Chevron Deference, Presidential Influence, and the Rule of Law in the Administrative State

Could This Supreme Court Case Affect Robert Mueller?

An upcoming Supreme Court decision in a case most Americans have never heard of, and even lawyers... more An upcoming Supreme Court decision in a case most Americans have never heard of, and even lawyers will find obscure, could offer a clue about how the justices would react to President Trump firing Special Counsel Robert Mueller. Technically, the case of Raymond J. Lucia v. Securities and Exchange Commission, being argued Monday, involves only the arcane question of whether SEC Administrative Law Judges are "officers" or "employees" of the United States. The Trump Administration's handling of the case reveals it, however, to be the latest chapter in a right-wing campaign to weaken independent administrators and to enlarge the power of presidents to bend the bureaucracy to their will. It may be one of the Court's most important decisions for the future of the rule of law. An upcoming case might show how the justices would react to the special counsel being dismissed.

Article II, Section 2: Treaty Power and Appointments

This encyclopedia entry summarizes the duties and authorities vested in the President by Article ... more This encyclopedia entry summarizes the duties and authorities vested in the President by Article II of the United States Constitution, reviews some of the ongoing controversies concerning that Article’s proper interpretation, and suggests why such debates are unlikely to subside. Key words: Checks and Balances; Constitution; Executive Powers; Presidency, The; Presidency in the Policy Process; Presidential Signing Statements; Separation of Powers; Unitary Executive; Youngstown Sheet &amp; Tube Company v. Sawyer.

E-rulemaking: new directions for information technology and regulation

ABSTRACT Each year, government agencies such as the U.S. Department of Agriculture, Environmental... more ABSTRACT Each year, government agencies such as the U.S. Department of Agriculture, Environmental Protection Agency, Federal Aviation Administration, and Nuclear Regulatory Commission collectively promulgate thousands of new regulations. Electronic rulemaking, or e-rulemaking, offers the potential to enhance the public&#39;s involvement in the regulatory process as well as improve the management of rulemaking. The Regulatory Policy Program at Harvard University&#39;s Kennedy School of Government convened two workshops on e-rulemaking over the past year: one in Washington, D.C., the other in Cambridge, Massachusetts. Sponsored by the National Science Foundation&#39;s Digital Government Research Program, these workshops brought together academic experts from computer sciences, law, and public management, along with key public officials involved in managing federal regulation, to forge a forward-looking research agenda needed to improve and expand e-rulemaking efforts. The panel at dg.o2003, the National Conference on Digital Government Research, shared the key themes that emerged from the Harvard workshops with the larger digital government research community and discussed the major challenges for future research on e-rulemaking.

Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009

Social Science Research Network, 2009

A number of provisions purport to restrict executive branch execution of programs that are funded... more

Separation of Powers Law: Cases and Materials

Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State

Harvard Journal of Law and Public Policy, 2010

Prosecutors at the Periphery

Chicago-Kent} Law Review, 2019

Protective of the Presidency (with Reed Hundt)

Constitutionalism and War Making

Legislative Delegation, the Unitary Presidency, and the Legitimacy of the Administrative State

Presidential Signing Statements and the Rule of Law as an “Unstructured Institution

WILLIAM & MARY BILL OF RIGHTS JOURNAL The Bush administration's signing statement practice has be... more WILLIAM & MARY BILL OF RIGHTS JOURNAL The Bush administration's signing statement practice has been notable for two distinct reasons. The first is the extremity of the constitutional vision that these statements typically assert, especially with regard to the so-called "unitary executive." 5 The second is their sheer volume, unmatched in the entire history of the executive. 6 Given the various other ways in which the administration has professed allegiance to its radical view of the separation of powers, the substantive content of the Bush signing statements is not surprising. But the obvious question is, why so many? To appreciate the puzzle, we have to recall that these views, even if earlier GOP Presidents pushed them less aggressively, were certainly held also by leading legal thinkers under both Presidents Reagan and Bush 41.' So why does President Bush 43-as opposed to Reagan or Bush 41-feel compelled so often to resort to signing statements in order to express his extreme constitutional theories? Bush's recent GOP predecessors, facing Congresses controlled by Democrats, certainly had less political room to work their will than he does. One might think that they would have been the more strident in asserting their prerogatives of unilateral action. Is it not odd that President Bush would be so insistent on his prerogatives in the face of Congresses entirely in GOP control from 2003 to 2006,8 and partially in GOP control from 2001 to 2002? 9 To grasp this phenomenon, I think we have to understand that presidentialism and pluralism can each operate not just as a constitutional philosophy, but also as an ethos, that is, as a fundamental element of the spirit with which the government conducts business. The Bush administration has operated until recently against the backdrop of Republican-controlled Congresses and a Supreme Court highly deferential to executive power. This political context has enabled the Bush administration not only to elaborate presidentialism as a theoretical stance but also to operate very largely within the premises of presidentialism, as if presidentialism really were what the Constitution envisions. The Bush 43 administration has thus been a supreme laboratory of presidentialism at work. Not only has it insisted, in theory, on a robust constitutional entitlement to operate free of legislative or judicial accountability, but it also has largely gotten away with this stance. And that success-the administration's unusual capacity to resist answering to Congress and to the courts-has fed, in turn, its sense of principled entitlement, its theory that the Constitution envisions a presidency answerable, in large measure, to no one. ' For an example of a signing statement citing the unitary executive power, see Statement on Signing the Coast Guard and Maritime Transportation Act of 2004, 40 WEEKLY CoMP.

Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers

The post-bicentennial period has produced a substantial literature on alleged vices of our nation... more The post-bicentennial period has produced a substantial literature on alleged vices of our national governmental structure. Our historically predominant principle of "checks and balances," which I will also call "checked separation of powers," allegedly renders our legislative and executive authorities incapable of formulating and implementing a coherent policy agenda with anything like the speed or regularity that compelling problems demand. Although some commentators have recommended restructuring the government, chiefly by emulating parliamentary models,' other writers would promote the coherence of government policymaking by accentuating the separation of legislative and executive powers. 2 After all, the President's capacity to formulate and implement efficiently a consistent government program could be enhanced not only by rendering the President a prime minister, but also by attributing to the President a substantial and constitutionally vested policymaking role beyond Congress's capacity to regulate. Such authority would move the President, albeit within statutory limits, in the direction of the French executive's inherent decree power. 3 In important respects, both the Reagan and Bush Administrations advocated this latter philosophy, 4 although, to be sure, it was always advertised as t Professor of Law, University of Iowa. This article benefitted from the insightful probing of the Cornell law faculty, who were kind enough to discuss an earlier draft in a workshop. I am also indebted to Donna R. Miller, Iowa '95, and Martin L. Wissott, Iowa '94, for their skillful research assistance. 1. See, e.g., C. Douglas Dillon, The Challenge of Modern Governance, in REFORMING AMERICAN GOVERNMENT: THE BICENTENNIAL PAPERS OF THE COMMITTEE ON THE CONSTITUTIONAL SYSTEM 24, 29 (Donald L. Robinson ed., 1985) (arguing that a parliamentary system would afford the government "greater ability to act promptly and energetically in the face of a crisis"); Charles M. Hardin, The Separation of Powers Needs Major Revision, in SEPARATION OF POWERS-DOES IT STILL WORK? 90, 92 (Robert A. Goldwin & Art Kaufman eds., 1986) (asserting that replacing separation of powers "with a separation between the government and the opposition" would remedy stalemate); Kevin Phillips, An American Parliament, in REFORMING AMERICAN GOVERNMENT: THE BICENTENNIAL PAPERS OF THE COMMITTEE ON THE CONSTITUTIONAL SYSTEM, supra, at 191 (claiming that the "counterproductivity of White House and congressional interaction" can be cured by modifying the role of the cabinet). For a thorough analysis and thoughtful rebuttal of the "parliamentary critique," see Thomas 0. Sargentich, The

The Rule of Law and the Inevitability of Discretion

At least two things are implicit in the title to this panel, "The Rule of Law and the Administrat... more At least two things are implicit in the title to this panel, "The Rule of Law and the Administrative State": first, there is something we can agree on called the Rule of Law; second, this Rule of Law is compromised in practice because of the advent of the Administrative State. The first of these propositions needs significant elaboration, and the second is wrong. There are deep disagreements about what the Rule of Law is. 1 At the most general level, to have a "Rule of Law" presumably means that those who govern us cannot wield the power of the state towards their personal ends either "just because they want to. .. or because they have force on their side." 2 What that entails, however, has eluded precise definition for centuries. 3 The Rule of Law, to use a phrase that Jeremy Waldron borrowed from the philosopher W. B. Gallie, is "an essentially contested concept." 4 "Essentially contested" does not just mean "very hotly contested." 5 It means that there is robust dispute as to the very core of * Jacob E. Davis and the Jacob E.

The Future of Online Journalism: News, Community, and Democracy in the Digital Age

Disruptive," "revolutionary," and "transformative" are among the adjectives most commonly deploye... more Disruptive," "revolutionary," and "transformative" are among the adjectives most commonly deployed to describe the social impact of new digital information and communications technologies. No enterprise has been more convulsed by these technologies than the business of journalism. The proliferation of new tools for creating and sharing video, audio, text, and data has exploded the number of voices in the public square and the number of ideas and viewpoints they communicate. Innumerable new outlets for news and information have created a widespread sense of information abundance, even overload. Citizens enjoy unprecedented opportunities to choose the * Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University. I am deeply grateful to the John S. and James L. Knight Foundation not only for its support of the Future of Online Journalism symposium, but also for sponsoring the Knight Commission on the Information Needs of Communities in a Democracy, of which I was privileged to serve as executive director from its inception in 2008 until the publication of its final

Federalism's Old Deal: What's Right and Wrong with Conservative Judicial Activism

Villanova law review, 2000

I. INTRODUCTION P UR federal courts are currently undergoing "[t]his century's third and final er... more I. INTRODUCTION P UR federal courts are currently undergoing "[t]his century's third and final era of judicial activism."' The animating impulse of this "contemporary activism is an interest in reviving the structural guarantees of dual sovereignty," that is, in protecting the vitality of "states as entities having residual sovereign rights." 2 The judicially targeted threat to these "residual sovereign rights" is the regulatory power of Congress. 3 This characterization of the modern era is not my own. It belongs to J. Harvie Wilkinson III, Chief Judge of the United States Court of Appeals for the Fourth Circuit. It appears in his concurrence to an en banc Fourth Circuit decision, Brzonkala v. Virginia Polytechnic Institute & State University, 4 which invalidated the civil damages remedy for gender-based violence that * © 1999. Peter M. Shane. All rights reserved. This Article was originally delivered as the Harold Gill Reuschlein Distinguished Lecture on October 29, 1999 at the Villanova University School of Law. I am grateful to audience members at both the Villanova lecture and at a Washington University in St. Louis School of Law faculty workshop based on this lecture for comments and suggestions that sharpened my thinking. I benefited also from the research assistance of Pittsburgh law student Trisha Williams '01.

Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis

The user has requested enhancement of the downloaded file.

Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking

We are living through a period of intense debateamong both academics and politicians-regarding th... more We are living through a period of intense debateamong both academics and politicians-regarding the appropriate presidential role in supervising our vast national bureaucracy. That debate has two distinct, if overlapping, dimensions. One is constitutional: does the Constitution, read historically or otherwise, command a particular model of presidential supervision?' The second addresses questions of policy: does government function best when the President enjoys plenary authority over the entire policy output of the bureaucracy? 2 Or is government more effective when policy making influence is shared between the President and Congress, and among high-level bureaucratic administrators? The Reagan and Bush Administrations took explicit positions on both sets of issues. On the doctrinal side, the Meese Justice Department expressly promulgated a systematic creed of constitutional interpretation. 3 This Reagan-* Dean and Professor of Law, University of Pittsburgh School of Law. I would like to thank my fellow panelists for their helpful reactions to this paper, and Donna Miller, Iowa '95, for her research assistance. I am grateful also to the University of Iowa Law School Foundation, which supported part of this research in my waning days in Iowa City. 1. Professor Steven G. Calabresi, for example, argues that the Constitution dictates that the President have plenary control over all officials who help implement the laws. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995). By way of contrast, Professors Larry Lessig and Cass Sunstein argue that, as an originalist matter, the Constitution authorized Congress "to limit the exercise of administrative powers as a condition to its grant of these powers to any officer of the government." Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 54 (1994). 2. Despite their view that the Constitution did not originally command strong Presidential control over all administration, Professors Lessig and Sunstein would answer this particular question in the affirmative-and reinterpret the Constitution in light of that conclusion. Lessig & Sunstein, supra note 1, at 93-106.

Returning Separation of Powers Analysis to its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Penalties

I n thoughtful dicta uttered 60 years ago, Justice Frankfurter observed that even a legislature c... more I n thoughtful dicta uttered 60 years ago, Justice Frankfurter observed that even a legislature clear as to its regulatory objectives faces hard choices in selecting remedies for the implementation of those objectives: How to effectuate policy-the adaptation of means to legitimately sought ends-is one of the most intractable of legislative problems. Whether proscribed conduct is to be deterred by qui tam action or triple damages or injunction, or by criminal prosecution, or merely by defense to actions in contract, or by some, or all, of these remedies in combination, is a matter within the legislature's range of choice. Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience. 1

How Obama’s Immigration “Executive Action” Respects the Rule of Law

Chevron Deference, Presidential Influence, and the Rule of Law in the Administrative State

Could This Supreme Court Case Affect Robert Mueller?

An upcoming Supreme Court decision in a case most Americans have never heard of, and even lawyers... more An upcoming Supreme Court decision in a case most Americans have never heard of, and even lawyers will find obscure, could offer a clue about how the justices would react to President Trump firing Special Counsel Robert Mueller. Technically, the case of Raymond J. Lucia v. Securities and Exchange Commission, being argued Monday, involves only the arcane question of whether SEC Administrative Law Judges are "officers" or "employees" of the United States. The Trump Administration's handling of the case reveals it, however, to be the latest chapter in a right-wing campaign to weaken independent administrators and to enlarge the power of presidents to bend the bureaucracy to their will. It may be one of the Court's most important decisions for the future of the rule of law. An upcoming case might show how the justices would react to the special counsel being dismissed.

Article II, Section 2: Treaty Power and Appointments

This encyclopedia entry summarizes the duties and authorities vested in the President by Article ... more This encyclopedia entry summarizes the duties and authorities vested in the President by Article II of the United States Constitution, reviews some of the ongoing controversies concerning that Article’s proper interpretation, and suggests why such debates are unlikely to subside. Key words: Checks and Balances; Constitution; Executive Powers; Presidency, The; Presidency in the Policy Process; Presidential Signing Statements; Separation of Powers; Unitary Executive; Youngstown Sheet &amp; Tube Company v. Sawyer.

E-rulemaking: new directions for information technology and regulation

ABSTRACT Each year, government agencies such as the U.S. Department of Agriculture, Environmental... more ABSTRACT Each year, government agencies such as the U.S. Department of Agriculture, Environmental Protection Agency, Federal Aviation Administration, and Nuclear Regulatory Commission collectively promulgate thousands of new regulations. Electronic rulemaking, or e-rulemaking, offers the potential to enhance the public&#39;s involvement in the regulatory process as well as improve the management of rulemaking. The Regulatory Policy Program at Harvard University&#39;s Kennedy School of Government convened two workshops on e-rulemaking over the past year: one in Washington, D.C., the other in Cambridge, Massachusetts. Sponsored by the National Science Foundation&#39;s Digital Government Research Program, these workshops brought together academic experts from computer sciences, law, and public management, along with key public officials involved in managing federal regulation, to forge a forward-looking research agenda needed to improve and expand e-rulemaking efforts. The panel at dg.o2003, the National Conference on Digital Government Research, shared the key themes that emerged from the Harvard workshops with the larger digital government research community and discussed the major challenges for future research on e-rulemaking.

Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009

Social Science Research Network, 2009

A number of provisions purport to restrict executive branch execution of programs that are funded... more

Separation of Powers Law: Cases and Materials

Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State

Harvard Journal of Law and Public Policy, 2010

Prosecutors at the Periphery

Chicago-Kent} Law Review, 2019

Protective of the Presidency (with Reed Hundt)

Constitutionalism and War Making

Legislative Delegation, the Unitary Presidency, and the Legitimacy of the Administrative State

Presidential Signing Statements and the Rule of Law as an “Unstructured Institution

WILLIAM & MARY BILL OF RIGHTS JOURNAL The Bush administration's signing statement practice has be... more WILLIAM & MARY BILL OF RIGHTS JOURNAL The Bush administration's signing statement practice has been notable for two distinct reasons. The first is the extremity of the constitutional vision that these statements typically assert, especially with regard to the so-called "unitary executive." 5 The second is their sheer volume, unmatched in the entire history of the executive. 6 Given the various other ways in which the administration has professed allegiance to its radical view of the separation of powers, the substantive content of the Bush signing statements is not surprising. But the obvious question is, why so many? To appreciate the puzzle, we have to recall that these views, even if earlier GOP Presidents pushed them less aggressively, were certainly held also by leading legal thinkers under both Presidents Reagan and Bush 41.' So why does President Bush 43-as opposed to Reagan or Bush 41-feel compelled so often to resort to signing statements in order to express his extreme constitutional theories? Bush's recent GOP predecessors, facing Congresses controlled by Democrats, certainly had less political room to work their will than he does. One might think that they would have been the more strident in asserting their prerogatives of unilateral action. Is it not odd that President Bush would be so insistent on his prerogatives in the face of Congresses entirely in GOP control from 2003 to 2006,8 and partially in GOP control from 2001 to 2002? 9 To grasp this phenomenon, I think we have to understand that presidentialism and pluralism can each operate not just as a constitutional philosophy, but also as an ethos, that is, as a fundamental element of the spirit with which the government conducts business. The Bush administration has operated until recently against the backdrop of Republican-controlled Congresses and a Supreme Court highly deferential to executive power. This political context has enabled the Bush administration not only to elaborate presidentialism as a theoretical stance but also to operate very largely within the premises of presidentialism, as if presidentialism really were what the Constitution envisions. The Bush 43 administration has thus been a supreme laboratory of presidentialism at work. Not only has it insisted, in theory, on a robust constitutional entitlement to operate free of legislative or judicial accountability, but it also has largely gotten away with this stance. And that success-the administration's unusual capacity to resist answering to Congress and to the courts-has fed, in turn, its sense of principled entitlement, its theory that the Constitution envisions a presidency answerable, in large measure, to no one. ' For an example of a signing statement citing the unitary executive power, see Statement on Signing the Coast Guard and Maritime Transportation Act of 2004, 40 WEEKLY CoMP.

Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers

The post-bicentennial period has produced a substantial literature on alleged vices of our nation... more The post-bicentennial period has produced a substantial literature on alleged vices of our national governmental structure. Our historically predominant principle of "checks and balances," which I will also call "checked separation of powers," allegedly renders our legislative and executive authorities incapable of formulating and implementing a coherent policy agenda with anything like the speed or regularity that compelling problems demand. Although some commentators have recommended restructuring the government, chiefly by emulating parliamentary models,' other writers would promote the coherence of government policymaking by accentuating the separation of legislative and executive powers. 2 After all, the President's capacity to formulate and implement efficiently a consistent government program could be enhanced not only by rendering the President a prime minister, but also by attributing to the President a substantial and constitutionally vested policymaking role beyond Congress's capacity to regulate. Such authority would move the President, albeit within statutory limits, in the direction of the French executive's inherent decree power. 3 In important respects, both the Reagan and Bush Administrations advocated this latter philosophy, 4 although, to be sure, it was always advertised as t Professor of Law, University of Iowa. This article benefitted from the insightful probing of the Cornell law faculty, who were kind enough to discuss an earlier draft in a workshop. I am also indebted to Donna R. Miller, Iowa '95, and Martin L. Wissott, Iowa '94, for their skillful research assistance. 1. See, e.g., C. Douglas Dillon, The Challenge of Modern Governance, in REFORMING AMERICAN GOVERNMENT: THE BICENTENNIAL PAPERS OF THE COMMITTEE ON THE CONSTITUTIONAL SYSTEM 24, 29 (Donald L. Robinson ed., 1985) (arguing that a parliamentary system would afford the government "greater ability to act promptly and energetically in the face of a crisis"); Charles M. Hardin, The Separation of Powers Needs Major Revision, in SEPARATION OF POWERS-DOES IT STILL WORK? 90, 92 (Robert A. Goldwin & Art Kaufman eds., 1986) (asserting that replacing separation of powers "with a separation between the government and the opposition" would remedy stalemate); Kevin Phillips, An American Parliament, in REFORMING AMERICAN GOVERNMENT: THE BICENTENNIAL PAPERS OF THE COMMITTEE ON THE CONSTITUTIONAL SYSTEM, supra, at 191 (claiming that the "counterproductivity of White House and congressional interaction" can be cured by modifying the role of the cabinet). For a thorough analysis and thoughtful rebuttal of the "parliamentary critique," see Thomas 0. Sargentich, The

The Rule of Law and the Inevitability of Discretion

At least two things are implicit in the title to this panel, "The Rule of Law and the Administrat... more At least two things are implicit in the title to this panel, "The Rule of Law and the Administrative State": first, there is something we can agree on called the Rule of Law; second, this Rule of Law is compromised in practice because of the advent of the Administrative State. The first of these propositions needs significant elaboration, and the second is wrong. There are deep disagreements about what the Rule of Law is. 1 At the most general level, to have a "Rule of Law" presumably means that those who govern us cannot wield the power of the state towards their personal ends either "just because they want to. .. or because they have force on their side." 2 What that entails, however, has eluded precise definition for centuries. 3 The Rule of Law, to use a phrase that Jeremy Waldron borrowed from the philosopher W. B. Gallie, is "an essentially contested concept." 4 "Essentially contested" does not just mean "very hotly contested." 5 It means that there is robust dispute as to the very core of * Jacob E. Davis and the Jacob E.

The Future of Online Journalism: News, Community, and Democracy in the Digital Age

Disruptive," "revolutionary," and "transformative" are among the adjectives most commonly deploye... more Disruptive," "revolutionary," and "transformative" are among the adjectives most commonly deployed to describe the social impact of new digital information and communications technologies. No enterprise has been more convulsed by these technologies than the business of journalism. The proliferation of new tools for creating and sharing video, audio, text, and data has exploded the number of voices in the public square and the number of ideas and viewpoints they communicate. Innumerable new outlets for news and information have created a widespread sense of information abundance, even overload. Citizens enjoy unprecedented opportunities to choose the * Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University. I am deeply grateful to the John S. and James L. Knight Foundation not only for its support of the Future of Online Journalism symposium, but also for sponsoring the Knight Commission on the Information Needs of Communities in a Democracy, of which I was privileged to serve as executive director from its inception in 2008 until the publication of its final

Federalism's Old Deal: What's Right and Wrong with Conservative Judicial Activism

Villanova law review, 2000

I. INTRODUCTION P UR federal courts are currently undergoing "[t]his century's third and final er... more I. INTRODUCTION P UR federal courts are currently undergoing "[t]his century's third and final era of judicial activism."' The animating impulse of this "contemporary activism is an interest in reviving the structural guarantees of dual sovereignty," that is, in protecting the vitality of "states as entities having residual sovereign rights." 2 The judicially targeted threat to these "residual sovereign rights" is the regulatory power of Congress. 3 This characterization of the modern era is not my own. It belongs to J. Harvie Wilkinson III, Chief Judge of the United States Court of Appeals for the Fourth Circuit. It appears in his concurrence to an en banc Fourth Circuit decision, Brzonkala v. Virginia Polytechnic Institute & State University, 4 which invalidated the civil damages remedy for gender-based violence that * © 1999. Peter M. Shane. All rights reserved. This Article was originally delivered as the Harold Gill Reuschlein Distinguished Lecture on October 29, 1999 at the Villanova University School of Law. I am grateful to audience members at both the Villanova lecture and at a Washington University in St. Louis School of Law faculty workshop based on this lecture for comments and suggestions that sharpened my thinking. I benefited also from the research assistance of Pittsburgh law student Trisha Williams '01.

“The Legality of the 2012 Obama Recess Appointments,” University of Chicago Law School Chapter of the American Constitution Society, Apr. 25, 2013.

Knight Commission on the Information Needs of Communities in a Democracy (Peter M. Shane, Lead Drafter), Informing Communities: Strengthening Democracy in the Digital Age (Aspen Institute, 2009).