Law Commons^™

The Good Society, Commerce, And The Rehnquist Court, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Rights And Rules: An Overview, Matthew Adler, Michael Dorf

Michael C. Dorf

Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional …

Incidental Burdens On Fundamental Rights, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Equal Protection Incorporation, Michael C. Dorf

Michael C. Dorf

In order to preserve a broad field of play for legislative and administrative action, courts do not subject most state action to exacting scrutiny under the Equal Protection Clause. For half a century, the principal exception has consisted of so-called suspect and semi-suspect classifications. Although the Supreme Court has articulated criteria for identifying such classifications, standing alone, none of these criteria is satisfactory, nor has the Court found any principled means of combining them. This Article proposes a judicial reading of the Equal Protection Clause, "equal protection incorporation", that roots the process of identifying suspect and semi-suspect classifications in constitutional …

Prediction And The Rule Of Law, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Abortion Rights, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" And Others Don't?, Michael Dorf

Michael C. Dorf

Why do some Republican Supreme Court Justices evolve over time, becoming more liberal than they were - or at least more liberal than they were generally thought likely to be - when they were appointed, while others prove to be every bit as conservative as expected? Although idiosyncratic factors undoubtedly play some role, for every Republican nominee since President Nixon took office, federal executive branch service has been a reliable predictor. Nominees without it have proved moderate or liberal, while those with it have been steadfastly conservative.

This Essay demonstrates the correlation for all twelve Republican appointees during this period …

Our Undemocratic Constitution: Where The Constitution Goes Wrong (And How We The People Can Correct It), Michael C. Dorf

Michael C. Dorf

No abstract provided.

The Marginality Of Citizens United, Michael C. Dorf

Michael C. Dorf

No abstract provided.

What Does The Second Amendment Mean Today?, Michael C. Dorf

Michael C. Dorf

A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators. This Article argues that the Second Amendment has not been …

God And Man In The Yale Dormitories, Michael C. Dorf

Michael C. Dorf

No abstract provided.

A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel

Michael C. Dorf

In this Article, Professors Dorf and Sabel identif a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that …

Facial Challenges To State And Federal Statutes, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Michael C. Dorf

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

After Bureaucracy, Michael C. Dorf

Michael C. Dorf

No abstract provided.