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Exceptionalism by Michael B Mukasey

Independence Day 2017

Randolph J. May July 03, 2017
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Lincoln’s Gettysburg Address, without question one of the most powerful, eloquent speeches in the American canon, consists of only 272 words and was delivered in less than three minutes. 

Compare Lincoln’s far less well known, but nevertheless eloquent address in Peoria, Illinois, on October 16, 1854. The Peoria Address, as it came to be known, consists of over 17,000 words and took Lincoln three hours and ten minutes to deliver. 

The Peoria Address was a response to passage of the Kansas-Nebraska Act, which voided a restriction on the extension of slavery that had been part of the Missouri Compromise of 1820. The speech marked Lincoln’s reentry into politics and thrust him into the national debate over slavery. 

For present purposes, the Peoria Address is relevant to understanding the meaning of Independence Day. Indeed, Lincoln grounded his extended argument against slavery firmly in the philosophy and principles expounded in the Founders’ Declaration of 1776, not the Constitution of 1787.  [Read More]

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Article: Supreme Court Season of Turmoil

Williams v. Pennsylvania: Supreme Court Holds Judge Can’t Hear Case He Once Prosecuted

Evan Bernick June 13, 2016
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The legal principle that “No person may be a judge in his own cause” can be traced back centuries. But is it a mere shibboleth, given lip service long after it has ceased to play an important role in our law? In Williams v. Pennsylvania, the Supreme Court affirmed its continued vitality, holding that a prosecutor-turned-judge was constitutionally required to recuse himself from a case involving a man for whom he (as prosecutor) had once recommended the death penalty. [Read More]

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FCC Front Door

FCC Enforcement and Merger Review Actions Violate Rule of Law Principles

The rule of law depends upon adherence to a system of binding rules of certain process norms, or what we often call “due process of law.” One of those process norms requires that the law, in order to be binding, provide sufficient clarity, predictability, and equal applicability. The rule of law safeguards against excessive and arbitrary exercises of government power.

These process norms deserve close attention when it comes to analyzing the regulatory and enforcement activities of administrative agencies. Recent activities of the Federal Communications Commission (FCC) warrant particularly close consideration. In The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses, published May 23 in the Federalist Society Review, we argue that the enforcement and merger review activities of the Commission undermine important rule of law principles.  [Read More]