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Amicus Brief, First American Financial Corp. V. Edwards, No. 10-708, Scott Dodson

Scott Dodson

No abstract provided.

A Darwinist View Of The Living Constitution, Scott Dodson

Scott Dodson

The metaphor of a “living" Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding living constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective.

This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used and concludes that …

Judicial Activism: Reconsider Old Taboo, Scott Dodson

Scott Dodson

The recent cries of judicial activism need to be scrutinized. Are decisions like Lawrence and Goodrich really activist and, if so, is that even something to be discouraged? In this editorial, I look closely at the "activism" of these decisions and conclude that there is nothing inherently activist about them. I also conclude that, even if there is, activism is defensible in certain cases when it returns to the people the power to exercise their own individual liberties.

The Peculiar Federal Marriage Amendment, Scott Dodson

Scott Dodson

In this essay, I discuss the Constitution's commitment to three themes--state power, individual liberty, and equality--and then demonstrate how the FMA is uniquely contrary to all three. I do not intend to go so far as to suggest that the FMA would be an "unconstitutional amendment," [FN8] if such things are possible, nor do I mean to suggest that same-sex marriage is or should be affirmatively protected by the Constitution. I mean only to suggest that proposed amendments that are contrary to existing constitutional themes should be scrutinized warily for thematic coherence. Because the FMA is contrary to three powerful …

Vectoral Federalism, Scott Dodson

Scott Dodson

In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups. Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps …

Dignity: The New Frontier Of State Sovereignty, Scott Dodson

Scott Dodson

Few constitutional doctrines have had as turbulent a history as state sovereign immunity, the right of a state to refuse to appear as a defendant in court. The Court has, until recently, avoided a full explanation of the reason for immunizing states from certain suits. But in the 2002 decision Federal Maritime Commission v. South Carolina State Ports Authority, the Court asserted that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. This “dignity rationale” lacks substantial justification and is untethered to any limiting principles. Given that, …

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

Scott Dodson

What are the parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states' sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, even …