Digital Commons Network^™

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to …

The Democratic Deficit, Joseph Raz

Faculty Scholarship

Why democracy? Institutions of government and others must meet conditions of legitimacy. Why? and what are they? what are principles of legitimacy, like the principle of subsidiarity? and how does democracy fit in a theory of legitimacy? The paper surveys what it takes to be the seven most important advantages of democratic government: civil and political rights, more extensive opportunities for people to engage in public affairs, responsiveness to the expressed preferences of the people, stability, peaceful transfer of power, loyalty and solidarity. It then considers the role of legitimation in securing these advantages. These reflection lead to the question …

The Challenge Of The New Preemption, Richard Briffault

Faculty Scholarship

The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including among others firearms, workplace conditions, sanctuary cities, antidiscrimination laws, and environmental and public health regulation. Particularly striking are punitive measures that do not just preempt local measures but also hit local officials or governments with criminal or civil fines, state aid cutoffs, or liability for damages, as well as broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption …

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal …

The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a …

The Supreme Court's Regulatory Takings Doctrine And The Perils Of Common Law Constitutionalism, Thomas W. Merrill

Faculty Scholarship

My objective in this lecture is to take seriously the observation that constitutional law in the United States, as expounded by its Supreme Court, bears far more resemblance to common law than to textual interpretation. We live under a written Constitution. But the main body of that Constitution, including the first ten amendments we call the Bill of Rights, is very old, having been adopted nearly 230 years ago. As time marches on, judicial interpretations of this venerable text have piled up. Constitutional disputes today are almost always resolved by the courts applying this growing body of precedent. Constitutional law …

Comment On Brewer: Form And Content In Legal Proof (Or Why Everybody Wins - Or At Least Gets A Participation Trophy), Gary S. Lawson

Faculty Scholarship

In 1980, I was in a Contracts class taught by the incomparable Arthur Leff. It became very clear very quickly that one student in that class was (apart from Professor Leff) the smartest and most interesting person in the room. That person was Scott Brewer. More than three and a half decades later, when I thought about who I would most like to invite to comment on my book Evidence of the Law: Proving Legal Claims, one name immediately shot into my mind: Scott Brewer. He was, as the saying goes, at the very top of my draft board. He …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson

Faculty Scholarship

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When …

Take The Fifth... Please!: The Original Insignificance Of The Fifth Amendment's Due Process Of Law Clause, Gary S. Lawson

Faculty Scholarship

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process …

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …

Qualitative Diversity: Affirmative Action's New Reframe, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Prophylactic Fifth Amendment, Tracey Maclin

Faculty Scholarship

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Faculty Scholarship

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …

Review Of David Cole. Engines Of Liberty: The Power Of Citizen Activists To Make Constitutional Law., Pat Newcombe

Faculty Scholarship

In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, David Cole presents a fascinating perspective on constitutional law by recounting three engaging stories of enormous constitutional change and of the organizations and individuals, whose efforts achieved such change. Cole’s accounts are well supported with citations to documents and personal interviews, all written in an accessible, engaging, and clear style. The Author highly recommends this first-rate work to law, general academic, and public libraries.

Obergefell, Fisher, And The Inversion Of Tiers, Maxwell Stearns

Faculty Scholarship

In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. In oral argument in Fisher v. University of Texas, the Court signaled its growing discomfort with the Grutter v. Bollinger strict scrutiny doctrine, which affords a level of institutional deference in tension with narrow tailoring and least restrictive means. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve de facto applications of strict …

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Holier Than You And Me: 'Religious Liberty' Is The New Bully Pulpit And Its Meaning Is Endangering Our Way Of Life, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Puerto Rico And The Netherworld Of Sovereign Debt Restructuring, Mitu Gulati, Robert K. Rasmussen

Faculty Scholarship

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring mechanism …

What Is Foreign Relations Law?, Curtis A. Bradley

Faculty Scholarship

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …

Brief Of Amicus Curiae Children’S Law Clinic At Duke Law School Advocates For Children’S Services Of Legal Aid Of North Carolina Public Schools First Nc, Jane R. Wettach, Peggy Nicholson, K. Ricky Watson Jr., Celia Pistolis, Aisha Forte, Jennifer Story, Kevin Zhao

Faculty Scholarship

No abstract provided.

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Fear And Firearms, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …

Family Reunification And The Security State, Kerry Abrams

Faculty Scholarship

No abstract provided.

Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.