January 2011 Vol. 109 No. 4 THE REVIEW
ARTICLES

Limited War and the Constitution: Iraq and the Crisis of Presidential Legality

Bruce Ackerman & Oona Hathaway

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by his predecessor's exercises in institutional aggrandizement.

The presidency is not solely responsible for this unconstitutional escalation. Congress has failed to check this abuse because it has failed to adapt its central power over the use of military force-the power of the purse-to the distinctive problem of limited war. Our proposal restores Congress to its rightful role in our system of checks and balances. We suggest that the House and Senate adopt new "Rules for Limited War that would create a presumption that any authorization of military force will expire after two years, unless Congress specifies a different deadline. The congressional time limit would be enforced by a prohibition on future war appropriations after the deadline, except for money necessary to wind down the mission.

These new rules would not only prevent presidents from transforming limited wars into open-ended conflicts; they would also create incentives for more robust democratic debate. Under the Constitution, either the House or the Senate may adopt these rules unilaterally, thereby avoiding the threat of presidential veto. Building on this constitutional foundation, our proposal provides a practical way in which Congress may effectively reassert its constitutional power-and with it more effective democratic control-over the use of military force.

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Citizens United and the Illusion of Coherence

Richard L. Hasen
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Federalism and Criminal Law: What the Feds Can Learn from the States

Rachel E. Barkow
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NOTES

Revitalizing Motive and Opportunity Pleading After Tellabs

Marvin Lowenthal

Congress passed the Private Securities Litigation Reform Act of 1995 ("PSLRA") to prevent frivolous lawsuits that had been draining resources from businesses. This legislation included provisions for heightening the pleading requirements for scienter, or state-of-mind, requirement, for securities law violations. Many circuit courts debated whether the motive and opportunity test for scienter, applied initially by the Second and Third Circuits, survived the passage of the PSLRA. This Note argues that while the motive and opportunity test has been discounted by numerous circuits, it not only remains viable for pleading scienter under the PSLRA, but it accomplishes the PSLRA's goals better than any other standard presently available. Despite the concerns voiced by many circuit courts, the PSLRA was not passed to eliminate the motive and opportunity test, nor is the motive and opportunity test, as it is now applied by the Second Circuit, inconsistent with the PSLRA. In addition, while the recent Supreme Court decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd. convinced the Third Circuit to abandon the motive and opportunity test, the language of Tellabs demonstrates that the decision did not eliminate the test. Not only is the motive and opportunity test still viable, but it serves the policy reasons behind enacting the PSLRA better than the holistic approach utilized by other circuit courts.

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Respondeat Superior as an Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims

J.J. Burns
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