Law Commons^™

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

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This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …

Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn

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Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second, …

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

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The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

Going "Clear", Ryan D. Doerfler

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This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

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In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature …

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

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Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped …

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

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In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

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For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the …

Corporate Governance Beyond Economics, Elizabeth Pollman

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In recent years, changes to state and federal law have increased pressure on corporate law to serve as an ordering mechanism for interests and values beyond economics. On the federal front, two U.S. Supreme Court cases have put existing corporate law in a new quasi-constitutional light. In the landmark decisions of Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc., the Supreme Court has pointed to state corporate law as the mechanism for ordering political and religious activity. In addition, Congress, the SEC, and federal courts have been embroiled in battles about the scope and appropriateness of regulating …

The Operational And Administrative Militaries, Mark P. Nevitt

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This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus …

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

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After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan

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This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

Brief Of National Law Professors Of Criminal, Procedural, And Constitutional Law, In Re Humphrey, California Supreme Court, Regarding The Imposition Of Money Bail And Conditions Of Pretrial Release, Sandra G. Mayson, Kellen R. Funk

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When the government proposes to incarcerate a person before trial, it must provide thorough justification, whether the mechanism of detention is a transparent detention order or its functional equivalent, the imposition of unaffordable money bail. A court contemplating money bail must determine whether it is likely to result in detention. If so, and the court nonetheless wishes to impose it, the court must find, by clear and convincing evidence established through an adversary hearing, that the unaffordable bail amount serves a compelling interest of the state that no less restrictive condition of release can meet. This will rarely be the …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

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Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Our Principled Constitution, Mitchell N. Berman

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Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

Dangerous Defendants, Sandra G. Mayson

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Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris

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The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

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The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

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The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent constitutional …

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

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The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

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What best explains how “Everything Became War and the Military Became Everything?”— the provocative title of a recent book by Professor Rosa Brooks of Georgetown Law. In this Essay, I turn to the Department of Defense’s (DoD) unique agency design as the vehicle to address this question. Specifically, I first describe and analyze the role that the 1947 National Security Act and 1986 Goldwater-Nichols Act play in incentivizing organizational behavior within the DoD. These two Acts have broad implications for national security governance. Relatedly, I address the consequences of these two core national security laws, focusing on the …

The Ecology Of Transparency Reloaded, Seth F. Kreimer

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As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

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Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

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American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

For Legal Principles, Mitchell N. Berman

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Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In …

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

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This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

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Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others …

High-Stakes Interpretation, Ryan D. Doerfler

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Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …