William P. Marshall

Bio: William P. Marshall is an academic researcher from University of North Carolina at Chapel Hill. The author has contributed to research in topics: Constitutional law & Supreme court. The author has an hindex of 8, co-authored 58 publications receiving 259 citations. Previous affiliations of William P. Marshall include University of California & Brigham Young University.

Eleven Reasons Why Presidential Power Inevitably Expands and Why it Matters

Abstract: In this essay I contend that the power of the presidency has been expanding since the founding, and that we need to consider the implications of this expansion within the constitutional structure of separation of powers, no matter which party controls the White House. Part I makes the descriptive case by briefly canvassing a series of factors that have had, and continue to have, the effect of expanding presidential power. Part II suggests this expansion in presidential power has created a constitutional imbalance between the executive and legislative branches, calling into doubt the continued efficacy of the structure of separation of powers set forth by the Framers. Part III then offers some suggestions as to how this power imbalance can be alleviated, but it does not present a silver bullet solution. Because many, if not all, the factors that have led to increased presidential power are the products of inevitable social and technological change, they are not easily remedied. The essay ends with only the modest conclusion that regardless of who wins the Presidency, it is critical that those on both sides of the aisle work to assure that the growth in presidential power is at least checked, if not reversed.

Conservatives and the Seven Sins of Judicial Activism

Abstract: This article evaluates the jurisprudence that the Court's conservative wing currently offers (both in majority and in dissent) against seven indices of judicial activism: countermajoritarian activism; nonoriginalist activism; precedential activism; jurisdictional activism; judicial creativity; remedial activism; and partisan activism. Part I addresses the first six indices. I discuss whether selected decisions are fairly susceptible to the activist label under each criterion and, if so, whether there are reasons that suggest that the cases are nevertheless defensible, even to those who generally oppose activist decisions. Part II presents an overall appraisal of whether the conservatives can be fairly labeled as activist and, if so, what that conclusion might say about the meaning of judicial activism and the enterprise of judicial decisionmaking generally. Additionally, because measuring a court's activism may require one to ask "activist compared to what?", I will evaluate the judicial activism that has achieved conservative results against the activism that has achieved liberal outcomes. Part III discusses the seventh sin-partisan activism. I separate this criterion from the others because it is potentially the most damning. While some level of activism may necessarily inhere in the process of constitutional interpretation, using judicial power to accomplish purely partisan ends does not. Finally, I conclude that the conservatives have indeed been activist with respect to five of the first six indices (remedial activism being the exception), but that in many instances, this activism is defensible, and that their overall record is neither unprecedented nor excessive in comparison to historical norms. Their fault, if any, is in their disingenuousness. They, or more often their defenders, claim that theirs is a jurisprudence more principled and more restrained than that of their liberal counterparts when in fact it is nothing more than a jurisprudence designed to effectuate particular results. I reach no conclusion, however, on the seventh sin. Partisan activism is a serious charge and the cases neither establish nor refute that the conservatives have engaged in it.

In Defense of Smith and Free Exercise Revisionism

Abstract: In Employment Division v Smith, the Supreme Court held that the Free Exercise Clause does not compel courts to grant exemptions from generally applicable criminal laws to individuals whose religious beliefs conflict with those laws.' Professor Michael McConnell has powerfully attacked Smith in a recent article in the Review.2 In this essay, I defend Smith's rejection of the constitutionally compelled free exercise exemption against McConnell's critique. The Smith opinion itself, however, cannot be readily defended. The decision, as written, is neither persuasive nor well-

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

Abstract: Proponents of the unitary executive have contended that its adoption by the framers “swept plural executive forms into the ash bin of history.” Virtually every state government, however, has a divided executive in which executive power is apportioned among different executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intra-branch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer. author. William R. Kenan Distinguished Professor of Law, University of North Carolina at Chapel Hill. I am grateful to Elizabeth Ferrill and Tyler Tarrant for their research assistance. I would also like to thank Hal Krent, Jim Tierney, and (especially) Kara Millonzi for their helpful comments and suggestions. MARSHALL FORMATTED FOR SC 2 (4-26-06) 8/31/2006 2:49 PM break up the presidency?

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

Controlling Administrative Power: An Historical Comparison

Abstract: This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis.

Facing Your Opponents: Social Identification and Information Feedback in Contests

Abstract: We experimentally investigate the effect of social identification and information feedback on individual behavior in contests. In all treatments we find significant over-expenditure of effort relative to the standard theoretical predictions. Identifying subjects through photo display decreases wasteful effort. Providing information feedback about others’ effort does not affect the aggregate effort, but it decreases the heterogeneity of effort and significantly affects the dynamics of individual behavior. A behavioral model which incorporates a non-monetary utility of winning and relative payoff maximization explains significant over-expenditure of effort. It also suggests that decrease in ‘social distance’ between group members through social identification promotes pro-social behavior and decreases over-expenditure of effort, while improved information feedback decreases the heterogeneity of effort.

Executive review : kontrola konstytucyjności prawa przez władzę wykonawczą w Stanach Zjednoczonych

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Ambivalent Sovereignty: Inquiries into the Dual Foundation of Political Realism's Subject

Abstract: Ambivalent Sovereignty inquires into the subject of political realism. This subject, sovereign authority, appears to have a dual foundation. It apears divided against itself, but how can realism nonetheless observe legitimate modes of sovereignty emerge? Against the liberal idea that a “synthesis” of both material-coercive and ideal-persuasive powers should be accomplished, within the world of international relations, realism gives meaning to a structural type of state power that is also constitutionally emerging and legitimately dividing itself—against itself. Machiavelli but particularly also other realists such as Hannah Arendt, Max Weber, and Aristotle are being reinterpreted to demonstrate why each state’s ultimate authority may symbiotically emerge from its self-divisions, rather than from one synthetic unity. Whereas liberal theorists, from Montesquieu to John Rawls and Alexander Wendt, err too far in assuming the presence of the state’s monistic authority, the realist theorists further advance an answer to how sovereign states may begin to both recognize and include only the most-legitimate manifestations of their common dualist authority. Ambivalent Sovereignty is relevant in this sense as it transcends-and-yet-includes these common dualities: freedom/necessity; emergence/causation; self-organization/power structures.