Document Type



Israel H. Peres Prize Paper (J. Resnik, T. Meares, A. Schwartz) (Best student Note or Comment appearing in the YLJ)


This Note presents a study of judicial decisions that have engaged with executive orders. The study was designed to elucidate the contexts in which courts have considered executive orders; to identify the questions that courts have posed about executive orders; and to synthesize the doctrine that courts have developed in response to those questions. This study reveals that, although the executive order is a powerful tool of the presidency, courts have not tended to acknowledge, in a particularly theorized way, the special challenges and demands of the executive order as a form of lawmaking. This Note argues that, in the absence of a thicker jurisprudential conception of the executive order, doctrinal asymmetries that heavily favor executive power have emerged. These asymmetries carry costs and therefore merit closer attention.

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