Digital Commons Network^™

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

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This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

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In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

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In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Reframing Article I, Section 8, Richard Primus

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Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …

The Federalist Constitution: Foreword, David S. Schwartz, Jonathan Gienapp, John Mikhail, Richard A. Primus

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Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court’s constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

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This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

Understanding National Remedies And The Principle Of National Procedural Autonomy: A Constitutional Approach, Daniel H. Halberstam

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This article provides a constitutionally grounded understanding of the vexing principle of ‘national procedural autonomy’ that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of ‘autonomy’, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the case law of the Court of Justice of the European Union may be considered through the lens of ‘prudential avoidance’, ie the decision to avoid difficult constitutional questions …

Getting To Know You: An Expanded Approach To Capital Jury Selection, Samuel P. Newton

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The Colorado Method of capital jury selection is a widely embraced strategy defense attorneys use to select jurors during voir dire, in which attorneys rank each juror exclusively on the likelihood that the juror will vote for death. The method could benefit from some expansion. Not all defense lawyers have access to Colorado-Method-based training. In innocence cases, defense lawyers should soften discussions of punishment prior to guilt since this tactic predisposes juries to vote for death. Nor do jurors' views or positions on the death penalty guarantee their eventual votes. While capital juries are already inclined to give death sentences …

Narrowing Death Eligibility In Idaho: An Empirical And Constitutional Analysis, Aliza Plener Cover

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No abstract provided.

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh D. Spitzer, Andy Omara

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It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

How The U.S. Constitution Connects With Covid-19, Richard Henry Seamon

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No abstract provided.

Private Confederate Monuments, Jessica Owley, Jess Phelps, Sean W. Hughes

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As public Confederate monuments finally begin to come down across the nation, we are seeing an emergence of Confederate monuments on private lands. The number of private Confederate monuments is increasing both with the construction of new monuments and, more significantly, the relocation of monuments from public land. This Article explains why private Confederate monuments are likely to be the next battleground over these controversial and troubling statues. Through ten detailed examples, we show how private Confederate monuments emerge and how communities are responding to them. The challenges related to monuments on private land are different than those on public …

New Federalism And Civil Rights Enforcement, Alexander A. Reinert, Joanna C. Schwartz, James E. Pfander

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Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

Courts Beyond Judging, Michael C. Pollack

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Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Pandemic Surveillance Discrimination, Christian Sundquist

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The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased …

The Second Founding And The First Amendment, William M. Carter Jr.

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Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Temporality In A Time Of Tam, Or Towards A Racial Chronopolitics Of Intellectual Property Law, Anjali Vats

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This Article examines the intersections of race, intellectual property, and temporality from the vantage point of Critical Race Intellectual Property ("CRTIP"). More specifically, it offers one example of how trademark law operates to normalize white supremacy by and through judicial frameworks that default to Euro-American understandings of time. I advance its central argument-that achieving racial justice in the context of intellectual property law requires decolonizing Euro-American conceptions of time by considering how the equitable defense of laches and the judicial power to raise issues sua sponte operate in trademark law. I make this argument through a close reading of the …

Lawyers For White People?, Jessie Allen

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This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Democracy, Distrust, And Presidential Immunities, Evan H. Caminker

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This Essay sketches how Ely's representation-reinforcement theory of judicial interpretation might frame presidential immunity doctrines and compares that frame to the Court's current approach. To what extent might various forms of presidential immunity, or exceptions thereto, be grounded in principles of democratic accountability rather than presidential efficacy? I conclude that a plausibly constructed Elyan paradigm provides an argument for immunity in many settings but also for exceptions to that immunity in narrow but important circumstances. More specifically: immunity can protect the President's ability to focus on serving her view of the national interest, without being unduly chilled or sidetracked by …

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

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Confederate monuments have again received increased attention in the aftermath of George Floyd's tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the "death" or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

The Executive Branch Anticanon, Deborah Pearlstein

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Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Gabriel Scheffler, Andrew Hammond, Ariel Jurow Kleiman

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No abstract provided.

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

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Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

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Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The Vesting …

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

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The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

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This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the Nineteenth Amendment does more. …

Seeing Beyond Courts: The Political Context Of The Nationwide Injunction, Charlton C. Copeland

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No abstract provided.

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

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For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

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In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

A Knock On Knick's Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack

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In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …