Law Commons^™

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

The Well-Intentioned Purpose But Weak Epistemological Foundation Of Originalism, George C. Christie

Faculty Scholarship

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires. They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that …

Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer

Faculty Scholarship

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for …

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

Delaware's Retreat: Exploring Developing Fissures And Tectonic Shifts In Delaware Corporate Law, James D. Cox, Randall S. Thomas

Faculty Scholarship

No abstract provided.

Doing Gloss, Curtis A. Bradley

Faculty Scholarship

It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …

Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez

Faculty Scholarship

No abstract provided.

Constitutionalism Outside The Courts, Ernest A. Young

Faculty Scholarship

This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and …

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what …

Simplifying The Standard Of Review In North Carolina Administrative Appeals, Sarah H. Ludington

Faculty Scholarship

No abstract provided.

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference?, John Gabriel Woodlee

Duke Law Journal

Many proponents of the Federal Sentencing Guidelines envisioned a system in which a politically insulated agency would craft guidelines based on empirical study. This vision of the now-advisory Guidelines survives in Supreme Court opinions that appear to accept that the work of the U.S. Sentencing Commission, the agency tasked with formulating the Guidelines, is driven largely by empirical analysis. This vision has created uncertainty, however, about how much deference courts should show particular Guidelines-such as Section 2G2.2, the Guideline applicable to possession of child pornography- that do not reflect empirical study by the Commission, but that have instead been shaped …

In Defense Of “Footnote Four”: A Historical Analysis Of The New Deal’S Effect On Land Regulation In The U.S. Supreme Court, Christopher S. Dodrill

Law and Contemporary Problems

At the turn of the nineteenth century, the US Supreme Court established and reinforced numerous so-called "economic rights." During the Lochner v. New York era, the Court invalidated almost 200 federal and state economic and labor regulations for interfering with the right to contract and for violating substantive due process. In 1937, however, Justice Stone's famous "footnote four" in United States v. Carolene Products Co. closed the coffin on Lochner. After Carolene Products, the Court stopped applying heightened scrutiny to economic legislation, and it began consciously protecting "discrete and insular minorities." Here, Dodrill explains the Lochner-era Supreme Court's standard of …

Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink

Duke Law Journal

First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need …

Another Hurdle To Habeas: The Streamlined Procedures Act, Michelle Hertz

Duke Law Journal

No abstract provided.

Advisory Counterparts To Constitutional Courts, Christopher S. Elmendorf

Duke Law Journal

In recent years, legal scholars have paid a great deal of attention to the emergence of constitutional courts and judicial review in democracies worldwide, yet an intriguing parallel development in democratic constitutionalism has gone largely unnoticed: the establishment of independent bodies which, like constitutional courts, are concerned with foundational commitments of liberal democracy, but which advance these commitments mainly through investigations and advice-giving. Lacking de jure authority to block the implementation of unconstitutional laws and policies, the new advice givers instead make their contributions ex ante, identifying problems that warrant legislative attention and helping to craft laws and regulations that …

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro

Duke Law Journal

Employment, brokerage, and other contracts routinely include "predispute" arbitration clauses-provisions requiring the parties to submit any and all future disputes to arbitrators rather than courts. In recent years, courts have come to enforce these clauses in the vast run of cases, requiring parties to arbitrate even when the underlying dispute implicates employment discrimination, antitrust, or other "public law" rights. In response to this trend, interest has grown in the extent of courts' authority to overturn arbitral awards that do not give effect to such rights. At first blush, the Federal Arbitration Act (FAA) does not appear to authorize any such …

Korematsu: A Mélange Of Military Imperatives, Eugene Gressman

Law and Contemporary Problems

No abstract provided.

The Political Question Doctrine: Suggested Criteria, Jesse H. Choper

Duke Law Journal

Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed-textual commitment-is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these-structural issues: federalism and separation of powers-has been advanced and developed …

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Cycles Of Constitutional Theory, Barry Friedman

Law and Contemporary Problems

Friedman presents information on the cyclical nature of constitutional theory. Because constitutional theory is a reaction to the current developments of constitutional law, it is interesting to view constitutional issues through the framework of different historical circumstances.