Cornell Law Review Volume 93 Issue 1

Blinking on the Bench: How Judges Decide Cases

How do judges judge? Do they apply law to facts in a mechanical and deliberative way, as the formalists suggest they do, or do they rely on hunches and gut feelings, as the realists maintain? Debate has raged for decades, but researchers have offered little hard evidence in support of either model. Relying on empirical studies of judicial […]

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Unleashing the Dogs of War: What the Constitution Means by “Declare War”

Does Congress’s power to “declare war” extend beyond the ability to issue formal declarations of war and include the power to decide whether the United States will wage war? Relatedly, does the “declare war” power subsume the authority to decide whether the United States will wage war even when another nation already has declared war on the United […]

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Making War

Presidents have long initiated military conflict without specific congressional authorization. For large wars this practice extends at least as far back as the Korean War if not further, and for smaller conflicts the practice can be traced to the very first administrations. During the Vietnam War, academic critics turned to the original intent of the Constitution’s Framers to argue […]

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The President’s Power to Respond to Attacks

Professor Saikrishna Prakash is a masterful interpreter of our Constitution’s historical meaning, and his Unleashing the Dogs of War (Unleashing) is an important and insightful account of constitutional war powers. It makes three central points. I agree with two of them. In this Response, I will explain why—though I hesitate to disagree with Professor Prakash on anything—I find the third […]

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A Two-Front War

It seems I am fighting a two-front war, besieged by three superb scholars. Professors Robert Delahunty and John Yoo, and Professor Michael Ramsey have authored bracing and challenging responses to Unleashing the Dogs of War (Unleashing). Though I have learned from these essays, their authors might say that I have not learned enough because I continue to adhere to the categorical theory’s […]

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“Respectful Consideration” After Sanchez-Llamas V. Oregon: Why the Supreme Court Owes More to the International Court of Justice

To read the complete Note, click “VIEW PDF” below. 

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