Violence and Nondelegation

135 Harvard Law Review Forum 463 (2022)

Duke Law School Public Law & Legal Theory Series No. 2022-37

10 Pages Posted: 23 Jun 2022

See all articles by Jacob D. Charles

Jacob D. Charles

Pepperdine University - Rick J. Caruso School of Law

Darrell A. H. Miller

Duke University School of Law

Date Written: June 22, 2022

Abstract

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this Essay, we apply intuitions about power transfer to the delegation of violence to private parties. In other words, we ask whether there are or should be constitutional limits on the types of force the government can permit private individuals to use against other private parties — in short, a violence nondelegation doctrine.

Keywords: delegation, nondelegation, constitutional law, violence, use of force

Suggested Citation

Charles, Jacob D. and Miller, Darrell A. H., Violence and Nondelegation (June 22, 2022). 135 Harvard Law Review Forum 463 (2022), Duke Law School Public Law & Legal Theory Series No. 2022-37, Available at SSRN: https://ssrn.com/abstract=4143807

Jacob D. Charles

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Darrell A. H. Miller (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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