Journal Co-Edited by Professor Trevor Morrison Focuses on Constitutional Law From Outside the Courts

New Journal Co-Edited by Professor Trevor Morrison '98 Focuses on Constitutional Law Generated Outside the Courts

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New York, June 7, 2011—Not all law is settled in the courts. And a new legal journal co-edited by Columbia Law School constitutional scholar Professor Trevor Morrison ’98 aims to highlight how the executive and legislative branches exercise their constitutional powers and set legal precedents without judges getting involved.
Morrison, along with James Ho, a partner at Gibson, Dunn & Crutcher, edits Pub L. Misc., a new legal journal. One premise of the publication is that the executive and legislative branches address many constitutional issues and generate many constitutional precedents that courts are liable to view as political questions or otherwise beyond their power to review. 
“Our constitutional law, as it has existed over time, includes the articulation and application of principles by non-judicial actors,” Morrison said. “When government officials who aren’t judges invoke the constitution and constitutional principles and traditions, it’s not always just cynical political rhetoric. It can merit serious substantive engagement.”
Morrison was in the midst of that kind of engagement when he worked from 2000-01 in the Office of the Legal Counsel (OLC) of the U.S. Justice Department, which provides legal opinions to the White House and federal agencies. Morrison also served as an Associate White House Counsel during the first year of the Obama administration in 2009 while on leave from the Law School.
Morrison last year wrote in the Columbia Law Review about the importance of stare decisis, or the doctrine of precedent, in OLC opinions. He said those opinions carry enormous weight within the executive branch, especially on issues—like war powers and foreign affairs—that are unlikely to find their way into the courts.
“For example, OLC was recently asked whether the president had legal authority to commit our military to the operations in Libya. There is virtually no way a court will ever review that question,” Morrison said.
The documents that will be featured in Pub L. Misc. are publicly available, but many are not readily accessible. As examples, Morrison cited letters between a congressional committee head and a White House counsel; and written questions a Senate committee poses to a judicial or executive branch nominee, along with the nominee’s answers.
“These can contain incredibly rich dialogues on questions of constitutional law,” Morrison said.
Pub L. Misc., whose title also conveniently serves as the abbreviation for how the journal would be cited in law reviews, is actually a journal within The Journal of Law, a new publication from Ross Davies, a law professor at George Mason University and the driving force behind the iconoclastic law review The Green Bag.
The Journal of Law aims to serve as an umbrella for five or six journals, two or three of which will be contained in each issue. Morrison expects Pub L. Misc. to appear about three times a year. “I see it as an experiment that relates nicely to some of the things that I’m interested in academically.”
Suggestions for documents to be included in future issues of Pub L. Misc. can be sent to Morrison at [email protected].
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