Digital Commons Network^™

"I'M Leavin' It (All) Up To You": Gundy And The (Sort-Of) Resurrection Of The Subdelegation Doctrine, Gary S. Lawson

Faculty Scholarship

In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue …

Testimony Of Rebecca Ingber Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber

Faculty Scholarship

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.

Pov: Scotus Should Not Permit “Boycott Of Same-Sex Marriage”, Linda C. Mcclain

Faculty Scholarship

On December 5, 2017, the Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which baker (self-described cake artist) Jack Phillips, owner of Masterpiece Cakeshop, asked the court to decide “whether applying Colorado’s public accommodations law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

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 …

The Proposed Separation Of Powers Restoration Act Goes Too Far, Jack M. Beermann

Shorter Faculty Works

If passed, the Separation of Powers Restoration Act would require federal courts conducting judicial review of agency action to decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.” Although I have long been highly critical of Chevron, see, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should be Overruled, 42 Conn. L. Rev. 9 (2010), and also have misgivings about Auer deference, I fear that the proposed Act goes too far in completely eliminating deference to agency legal determinations.

Time, Institutions, And Adjudication, Gary S. Lawson

Faculty Scholarship

Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …

Internet Payment Blockades: Sopa And Pipa In Disguise? Or Worse?, Stacey Dogan

Shorter Faculty Works

The law of intermediary liability in intellectual property reflects a constant struggle for balance. On the one hand, rights owners frustrated by the game of whack-a-mole have good reason to look for more efficient ways to stanch the flow of infringement. While this concern is not a new one, the global reach and decentralization of the Internet have exacerbated it. On the flipside, consumers, technology developers, and others fret about the impact of broad liability: it can impede speech, limit competition, and impose a drag on economic sectors with only a peripheral relationship to infringement. As the Supreme Court put …

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

Rethinking Notice, Jack M. Beermann

Shorter Faculty Works

APA § 553 (b)(3) requires agencies engaged in informal rulemaking to provide notice of "either the terms or substance of the proposed rule or a description of the subjects and issues involved." In most cases, agencies publish the complete text of their proposed rules, together with a preamble describing the need for the rule and the major considerations of policy and law that are raised by the proposal. Comments often convince agencies to make changes to their proposed rules. This, of course, is the whole point of the process. Difficulties arise, however, when, in reaction to comments, agencies promulgate rules …

Originalism Without Obligation, Gary S. Lawson

Faculty Scholarship

I am truly delighted that Boston University School of Law is hosting a conference on Abner Greene’s Against Obligation1 and Michael Seidman’s On Constitutional Disobedience. 2 Both books launch powerful and much-needed broadsides against the idea of a political obligation to obey the U.S. Constitution, and more generally (whether or not the authors embrace these implications) against the very idea of a political obligation to obey state authorities. I fully agree with both authors that the arguments normally made in favor of a duty of obedience to the Constitution, and by extension to state authorities of any kind, are remarkably …

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Post-Reform Medicaid Before The Court: Discordant Advocacy Reflects Conflicting Attitudes, Nicole Huberfeld

Faculty Scholarship

The Supreme Court will decide two major Medicaid cases this term that raise major questions about the program and the tensions it creates between the federal government and the states. The Court heard oral arguments on October 3d in Douglas v. Independent Living Center, a dispute between California and its Medicaid providers regarding reimbursement cuts due to California’s budget crisis. The Medicaid providers argue that these proposed cuts are so extreme as to violate federal law and thus the Supremacy Clause. Their contention hinges on the Equal Access Provision of the Medicaid Act, which commands states to pay healthcare providers …

Separation Of Powers And The Middle Way, Jack M. Beermann

Shorter Faculty Works

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding …

Capturing The Judiciary: Carhart And The Undue Burden Standard, Khiara Bridges

Faculty Scholarship

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade, with a new test for determining the constitutionality of abortion regulations — the “undue burden standard.” The Court’s 2007 decision in Gonzales v. Carhart was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions. A majority of the Court held that the regulation was constitutionally permissible, finding …

Veterans Benefits In 2010: A New Dialogue Between The Supreme Court And The Federal Circuit, Paul Gugliuzza

Faculty Scholarship

The Supreme Court rarely grants certiorari in a veterans benefits case. Congress gave the Federal Circuit exclusive jurisdiction over veterans appeals in 1988 but, until 2009, the Supreme Court had reviewed only two Federal Circuit veterans decisions. In the 2010 Term, however, the Court decided its second veterans case in less than two years. Although patent lawyers are familiar with a trend of increasing Supreme Court interest in the Federal Circuit’s work, little attention has been paid to the similar, albeit incipient, trend that may be emerging in the field of veterans law.

In this contribution to the annual Federal …

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Taking Responsibilities As Well As Rights Seriously, James E. Fleming

Faculty Scholarship

In his first book, Ronald Dworkin famously called for “taking rights seriously” by treating them as “trumps” over considerations of utility or the general welfare.1 Taking Rights Seriously (along with other works) provoked calls for taking responsibilities as well as (or instead of) rights seriously, or for engaging in “responsibility talk,” not just “rights talk.”2 In Life’s Dominion, Dworkin himself got on the responsibility bandwagon in justifying the right to procreative autonomy and the right to die.3 He countenanced that government may encourage women to take the decision whether to have an abortion responsibly, so long as it does not …

In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman

Faculty Scholarship

In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …

The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper

Faculty Scholarship

This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, …

Justice Ginsburg's Dissent In Bush V. Gore, Hugh Baxter

Faculty Scholarship

In this essay, I examine Justice Ginsburg's dissenting opinion in Bush v. Gore, the decision that ended the 2000 controversy over the winner of the presidency. I look critically at Justice Ginsburg's invocation of federalism-based deference to the Florida courts' interpretations of state election law in the recount controversy. I consider also Justice Ginsburg's criticisms of the Court's remedial decision to stop the recounts. Finally, I take up the much-debated question of how to understand Justice Ginsburg's final two words: "I dissent," rather than "I respectfully dissent." My conclusion is that the omission of "respectfully" is pointed, but not for …

Justice Ginsburg's Footnotes, Jay D. Wexler

Faculty Scholarship

In this short article written for the New England School of Law's March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg's footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme Court footnotes …

Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain

Faculty Scholarship

Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting …

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Rewriting Brown, Resurrecting Plessy, James E. Fleming

Faculty Scholarship

It is an honor and a pleasure to ponder Cooper v. AaronI and the legacy of Brown v. Board of Education2 in general and to respond to David A. Strauss's wise and insightful Childress Lecture3 in particular. I want to address three topics. The first two are encapsulated in my title: Rewriting Brown, Resurrecting Plessy. I'll examine the widespread phenomenon of "rewriting Brown." And I'll document what I shall call "resurrecting Plessy": the phenomenon, evident in both liberal and conservative scholarship and opinions, of charging one's opponents with repeating the mistakes of Plessy v. Ferguson.4 I'll illustrate the liberal version …

What Lurks Beneath: Nsa Surveillance And Executive Power Symposium: The Role Of The President In The Twenty-First Century, Gary S. Lawson

Faculty Scholarship

It is not surprising that, nearly two and a quarter centuries after ratification of the Federal Constitution, people are still actively arguing about the extent of the American President's powers.' The concept of executive power is notoriously murky,2 so disputes about its scope and character are virtually unavoidable. It is, however, at least a tad surprising that, nearly two and a quarter centuries after ratification of the Federal Constitution, people are still arguing about the constitutional sources of presidential power. 3 It is one thing to disagree about how far the President's power extends, but it is quite another thing …

Moral Philosophy, Information Technology, And Copyright, Wendy J. Gordon

Faculty Scholarship

A plethora of philosophical issues arise where copyright and patent laws intersect with information technology. Given the necessary brevity of the chapter, my strategy will be to make general observations that can be applied to illuminate one particular issue. I have chosen the issue considered in MGM v. Grokster,² a recent copyright case from the U.S. Supreme Court Grokster, Ltd., provided a decentralized peer-to-peer technology that many people, typically students, used to copy and distribute music in ways that violated copyright law. The Supreme Court addressed the extent to which Grokster and other technology providers should be held …

Ordinary Powers In Extraordinary Times: Common Sense In Times Of Crisis Symposium: Extraordinary Powers In Ordinary Times, Gary S. Lawson

Faculty Scholarship

The U.S. Constitution was written, debated, ratified, and implemented in the shadow of crisis. The country was birthed in war. In the aftermath of ratification, opponents of the Constitution could have precipitated a civil war that would have jeopardized the survival of the fledgling national government. I Throughout the founding era, any number of European powers were perceived to pose a serious threat of invasion. 2 Well into the 1800s, especially in certain northeastern states, substantial homegrown support for realignment with England persisted; the possibility of an internal rebellion in those areas was quite real.3 Individuals interested more in power …

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …

Brief Amicus Curiae Of Professors Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, And Thomas Ulen In Support Of Respondents In Philip Morris Usa V. Mayola Williams, Keith N. Hylton

Faculty Scholarship

There is no dispute that the punitive damages award that was upheld by the Oregon Supreme Court in this case satisfies the most rigorous law and economic standards for rationality. The Court need not credit the analysis of the undersigned amici on this score; the fact that Petitioner’s own amici – most notably law and economics scholars A. Mitchell Polinsky and Steven Shavell – have been unable to find anything economically amiss in the decision below speaks volumes. To be sure, Professors Polinsky and Shavell have filed an amicus brief in support of Philip Morris in this case, just as …