Constitutional Dictatorship: Its Dangers and Its Design
Constitutional dictatorship, far from being a contradiction in terms, has been an important feature of republican governments since Roman times. This essay describes the basic idea of a constitutional dictatorship, and discusses those elements of constitutional dictatorship that already exist in the American constitutional system, particularly in the modern presidency. A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. The Roman dictatorship limited the time of the dictatorship and separated the institution that declared the emergency from the person who exercised power. The American pattern has been quite different. Generally speaking, the President announces the existence of a crisis or emergency, and, at the President's request, the Congress generally bestows new statutory grants of power. These new powers are usually never repealed and are banked away for future use, sometimes in very different contexts. The American pattern of constitutional dictatorship does not involve the executive claiming the right to transcend the law; instead Congress grants ever more practically unreviewable discretion to the executive. In addition, a significant feature of American constitutionalism is the rise of "distributed dictatorships," in which executive power is spread among a number of de facto dictators, each with its own special expertise. The modern administrative state increasingly spreads unreviewable power among a variety of different agencies, czars, and bureaucrats. The Federal Reserve's response to the recent economic crisis and the Centers for Disease Control's powers to impose quarantines are examples. The essay concludes with some suggestions for counteracting the more dangerous tendencies in the American pattern of constitutional dictatorship. Although emergencies often cannot be foreseen in advance, the structural features of emergency power must be designed in advance to preserve republican government.
The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information
The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's "leakiness" is often taken to be a sign of organizational failure. The Article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.
School Principals and Education Law: What do they know, what do they need to know?
Principals now work in complex and challenging environments where uncertainty and change are the hallmarks of their roles and responsibilities. As such, the knowledge and capability demands on principals have expanded, including those related to education law. While these matters attracted some research interest a number of years ago, there has been little recent work in the area of principals and education law. This article reports on an exploratory study into aspects of the legal knowledge held by Tasmanian government school principals, particularly concerning non-sexual physical contact between teachers and students. The research was undertaken using a small-scale, mixed-methods research design, which required principals to respond to various legal scenarios. Three key findings emerged from the study. First, principals used two different levels of working knowledge about education law  one related to legal problems, and the other to legally-related routine activities. Second, on the particular topic of physical contact, some knowledge held by principals was not legally accurate. Third, for major legal issues, participants indicated that they acquired access to information from legal experts. The situation for routine legal matters was less clear, although in-service training and practical experience were identified as potential sources of knowledge. Participants recognised the importance of a sound knowledge of education law, especially for dealing with security and safety issues and preferred to access further information through in-service training. Notably, the findings of the study are broadly consistent with those from earlier Australian and international research, suggesting that much remains to be done in the area of principals’ education law knowledge.