Law Commons^™

Beyond Judicial Activism: When The Supreme Court Is No Longer A Court, Margaret L. Moses

Margaret L. Moses

Our Supreme Court, in recent decisions, has reached out beyond the cases that were put before it by litigants to decide issues that were not in dispute between the parties. The four Supreme Court decisions discussed in this article, Citizens United v. FEC, Ashcroft v. Iqbal, Montejo v. State of Louisiana, and Gross v. FBL, have frequently been criticized because of the changes in law they effected; this article, however, focuses on the process. When the Court decides its own questions, rather than those presented by the parties, it does so without the benefit of a record created below on …

Just The Facts: The Perils Of Expert Testimony And Findings Of Fact In Gay Rights Litigation, Libby Adler

Libby S. Adler

ABSTRACT Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation Before Perry v. Schwarzenegger, striking down Proposition 8 in California, the judicial victories for same-sex marriage all had been decided on motions for summary judgment. None required the testimony of witnesses; none produced a trial transcript; none resulted in findings of fact. But Judge Vaughn Walker of the Northern District of California presided over a trial. He made eighty separate factual findings, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs …

Revitalizing Section 2, Christopher Elmendorf

Christopher S. Elmendorf

This article develops a fresh account of the meaning and constitutional function of Section 2, the Voting Rights Act’s core provision of nationwide application, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. Section 2 on my account delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 only arise when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or …

A New Era For Desegregation, Danielle Holley-Walker

Danielle Holley-Walker

No abstract provided.

Between Judicial And Legislative Supremacy: A Cautious Defense Of Constrained Judicial Review, Alon Harel, Adam Shinar

Alon Harel

This Article explores and evaluates theories that we label “theories of constrained judicial review.” These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both the constitutional supremacy of courts and adopt an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution.

To evaluate such theories, this Article develops both a negative and a positive argument. It criticizes the existing justifications of constrained judicial review and provides a new justification for such theories. More specifically, we argue that the ultimate justification for constrained judicial review cannot be grounded in instrumentalist or consequentialist …

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia’S Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Chris Edelson

Justice Antonin Scalia recently declared that the 14th Amendment’s Equal Protection Clause simply does not apply to discrimination based on sex or sexual orientation. Though Justice Scalia’s statement is not exactly news, as he had previously suggested as much in dissenting opinions in Romer v. Evans and United States v. Virginia, it does provide an opportunity to consider how he arrived at these conclusions. Justice Scalia argues that he is simply applying the original meaning of the Equal Protection Clause, deferring to tradition and the will of the people until and unless democratic action provides new instructions. This article argues …

Ten Years After: Bartnicki V. Vopper As A Laboratory For First Amendment Advocacy And Analysis, Eric B. Easton

Eric B Easton

Ten Years After: Bartnicki v. Vopper as a Laboratory for First Amendment Advocacy and Analysis is a retrospective article that focuses on the litigation process involved in that case and the differences among the district, circuit, and high court opinions. The district court case was a battle of controlling precedents, the circuit court case selected among established doctrinal choices, and the Supreme Court decision came down to a delicate balancing test between the values at issue. Beyond analyzing the decisions, the article also explores the influence of the principal players in the litigation: the excellent regional media lawyer who took …

Avoiding Independent Agency Armageddon, Kent Barnett

Kent H Barnett

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same …

Dormancy, Garrick Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

Dormancy, Garrick B. Pursley

Garrick B. Pursley

This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines—now nearly canonical—has proceeded, surprisingly, without a complete picture of its target. Conventional views tend to assume that each different dormancy doctrine has a distinct constitutional basis and that these doctrines are solely concerned with guaranteeing the unencumbered exercise of …

The Principle Of Complementarity In The Origins Of Federal Civil Rights Enforcement, 1866-1871, Matthew A. Smith

Matthew A Smith

When the Rome Statute of the International Criminal Court was adopted in 1998, it was praised for its potential to ensure the punishment of international crimes without subjecting states to overzealous international prosecution. The Statute’s careful balance of individual security and sovereign autonomy—achieved by employing a legal concept known as complementarity—is credited as one of its core innovations. However, complementarity’s historical roots run deeper than commentators on the Rome Statute have recognized: complementarity also played a central role over a hundred years earlier in the United States Congress’s efforts to enforce the civil rights of United States citizens. This article …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …

Juridical Cripples: Plurality Opinions In The Supreme Court, John F. Davis, William L. Reynolds

William L. Reynolds

No abstract provided.

The Constitutional Right To Refuse: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Mark L Rienzi

The Fourteenth Amendment rights of various parties in the abortion context—the pregnant woman, the fetus, the fetus’ father, the state—have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. …

Originalism As Popular Constitutionalism?: Theoretical Possibilities And Practical Differences, Lee Strang

Lee J Strang

The common perception is that originalism and popular constitutionalism are incompatible. Supporting this perception is the widely-shared opinion that most advocates for popular constitutionalism are liberal while most originalists are conservative-libertarian. Not only is this the perception, it has a basis in reality. Looking at the names of leading originalists and popular constitutionalists reveals that there is significant overlap between originalism and conservatism-libertarianism, and between popular constitutionalism and liberalism.

In this Article, I argue that the common perception that originalism and popular constitutionalism are incompatible is mistaken. Instead, I show that there is no uniquely correct answer to the question …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

William L. Reynolds

No abstract provided.

Leave Health Care Law's Validity Up To Voters, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Due Process Rights Of Residential Tenants In Mortgage Foreclosure Cases, Henry Rose

Henry Rose

The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases

(Abstract)

A group who have been hard hit by the recent mortgage foreclosure crisis in the United States are residential tenants. It is estimated that forty percent of the households who have been displaced by mortgage foreclosures are tenants.

Some tenants have been evicted from their homes without notice pursuant to foreclosures of the mortgages on the buildings where they reside. In states which require judicial supervision of mortgage foreclosures, it likely violates basic principles of procedural Due Process for tenants to be evicted without notice. In states that …

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

Choosing Justices, Paul D. Carrington

Paul D. Carrington

Attention is directed to the absence of intellectual, social, and religious diversity in the present membership of the Supreme Court and advocates the appointment of Justices culturally different from the present group.

Treaties And The Constitution: Enforcing Treaties Against The States, David Sloss

David Sloss

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is …

Unclear And Unconvincing: The Truthiness Requirement Of California's Ballot Pamphlet Arguments, Michael Boardman

Michael Boardman

“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to …

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Robert L. Hayman

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Erin Daly

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.

Honest Debate At Core Of Constitution, Alan E. Garfield

Alan E Garfield

No abstract provided.

Sit Down And Count The Cost: A Framework For Constitutionally Enforcing The 501(C)(3) Campaign Intervention Ban, Benjamin M. Leff

Benjamin Leff

Abstract:

Section 501(c)(3) of the Internal Revenue Code prohibits charities from intervening in a political campaign for or against a candidate for public office. The IRS currently interprets the campaign-intervention ban to absolutely prevent charities from communicating their views on candidates, even if such communications are completely financed by non-501(c)(3) affiliates.

This article argues that the current IRS enforcement paradigm is unconstitutional because it exceeds the government interest in preventing tax-deductible donations to be used for campaign-intervention. A constitutional interpretation exists under the current statutory framework, but it would require the IRS to shift its focus exclusively to campaign-intervention-related expenditures. …

Thin Line Between Fighting Crime, Respecting Rights, Alan E. Garfield

Alan E Garfield

No abstract provided.