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Full-Text Articles in Law
Re-Reading Chevron, Thomas W. Merrill
Re-Reading Chevron, Thomas W. Merrill
Faculty Scholarship
Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.
We The People (Of Faith): The Supremacy Of Religious Rights In The Shadow Of A Pandemic, Elizabeth Reiner Platt, Katherine M. Franke, Lilia Hadjiivanova
We The People (Of Faith): The Supremacy Of Religious Rights In The Shadow Of A Pandemic, Elizabeth Reiner Platt, Katherine M. Franke, Lilia Hadjiivanova
Faculty Scholarship
Late on a Friday evening in April 2021, over a year into the COVID-19 crisis, the Supreme Court issued a brief opinion that dramatically transformed constitutional law. In the midst of a once-in-a-lifetime global pandemic, the Court ruled in Tandon v. Newsom that state and local governments seeking to curb the spread of the novel coronavirus may not restrict in-person religious gatherings more rigorously than any other type of activity, such as shopping for groceries or working at a warehouse. The opinion was only one in a barrage of cases filed in federal courts across the country — many …
Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger
Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger
Faculty Scholarship
From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …
Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy
Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy
Faculty Scholarship
The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …
The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg
The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg
Faculty Scholarship
In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to …
Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger
Delegation, Accommodation, And The Permeability Of Constitutional And Ordinary Law, Gillian E. Metzger
Faculty Scholarship
To some, the very idea of the constitutional law of the administrative state is an oxymoron. On this view, core features of the national administrative state — broad delegations and the combination of legislative, executive, and judicial power within administrative agencies, particularly agencies that are headed by unelected executive officials only removable on narrow grounds — are fundamentally at odds with both constitutional separation of powers principles and due process. To others, no such conflict between contemporary administrative governance and the Constitution exists, and assertions of the administrative state’s unconstitutionality rest on basic misunderstandings of what separation of powers and …
The Supreme Court As A Constitutional Court, Jamal Greene
The Supreme Court As A Constitutional Court, Jamal Greene
Faculty Scholarship
Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity's assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.
(Anti)Canonizing Courts, Jamal Greene
(Anti)Canonizing Courts, Jamal Greene
Faculty Scholarship
Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in …
The Missing Due Process Argument, Jamal Greene
The Missing Due Process Argument, Jamal Greene
Faculty Scholarship
The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.
Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw
Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw
Faculty Scholarship
The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …
Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund
Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund
Faculty Scholarship
Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …
Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt
Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt
Faculty Scholarship
The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.
Bush V. Gore As An Equal Protection Case, Richard Briffault
Bush V. Gore As An Equal Protection Case, Richard Briffault
Faculty Scholarship
In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's …
Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault
Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault
Faculty Scholarship
In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …
Comment On Professor Van Alstyne's Paper, Henry P. Monaghan
Comment On Professor Van Alstyne's Paper, Henry P. Monaghan
Faculty Scholarship
My major difficulty with Professor Van Alstyne's paper is its incomplete character. In the end, he makes only two points: first, judges are authorized to apply "this Constitution," not to do justice; and second, judges should not lie about what they are doing. The danger is that after a while the first point sounds somewhat empty, while the actual content of the second point seems entirely parasitic on the first.