Digital Commons Network^™

Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson

Scholarly Publications

No abstract provided.

Reproduction Reconceived, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern

Scholarly Publications

The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a …

Fixing Bail, Samuel R. Wiseman

Scholarly Publications

A large portion of the jail population consists of criminal defendants whose guilt has yet to be established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford the bond set by a …

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz

Scholarly Publications

This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This …

Shareholder Political Primacy, Jay B. Kesten

Scholarly Publications

Corporate political activity raises an important and diffcult question of corporate law: who decides when the corporation should speak and what it should say? In several cases, the Supreme Court has provided a clear answer: shareholders, acting through the procedures of corporate democracy. While this holding has attracted substantial academic and public criticism, there has been no sustained evaluation (beyond identifying the potential agency costs of corporate political activity) of the possibility that the Supreme Court's appeal to the fraught concept of "corporate democracy," though woefully under-theorized, might be the best allocation of power in the limited context of corporate …

Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld

Scholarly Publications

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments …

Political Support And Structural Constitutional Law, David Landau

Scholarly Publications

The field of comparative constitutional law has paid insufficient attention to judicial decisions on structural issues. This Article seeks to begin the process of constructing a comparative analysis of structural constitutional jurisprudence. Using both theoretical analysis and a case study, it seeks to demonstrate that courts are more likely to be successful in their programs of structural constitutional law when they enjoy support from other political and social actors. This simple point has significant implications for constitutional theory. First, it suggests that the structural safeguards theory long assumed in United States constitutional law may have only limited applicability. Under common …

Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler

Scholarly Publications

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

A line of Supreme Court decisions completely rejected this understanding …

Perceiving Orientation: Defining Sexuality After Obergefell, Mary Ziegler

Scholarly Publications

In the aftermath of the Supreme Court’s recent decision in Obergefell v. Hodges, constitutional jurisprudence will have to more clearly define sexual orientation itself. The Obergefell majority describes sexuality as binary and suggests that any sexual orientation is immutable, normal, and constitutive of individual identity. Other scholars have shown how the kind of binary created by Obergefell excludes those with more fluid sexual identities and experiences from legal protection.

This Article illuminates new problems with Obergefell’s approach to sexuality by putting that definition in historical context. While describing sexuality as a matter of orientation may now seem inevitable, …

Selective Entrenchment In State Constitutional Law: Lessons From Comparative Experience, David Landau

Scholarly Publications

While the U.S. Constitution has long been viewed as an outlier along a number of dimensions, recent work has explored the similarities between comparative constitutionalism and the constitutionalism of the states. Scholars have noted that state constitutions look more like the constitutions often found abroad along several key dimensions. Most importantly for our purposes, they are often long, detailed, and specific documents that go well beyond merely setting up a basic framework, and they are often relatively flexible and easy to amend. In contrast, the U.S. Constitution seems unusually sparse and rigid.

This essay argues that the recent work on …

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Scholarly Publications

Many of the Supreme Court's important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are "contingent" constitution- al determinations: the Court's conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts-particularly in the realm of campaign finance- require reform as well. Stare decisis purportedly insulates the Court's purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, …

Obergefell And The "New" Reproduction, Courtney Megan Cahill

Scholarly Publications

No abstract provided.