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Special Justifications, Randy J. Kozel Oct 2018

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the ...


Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet, Yvette Joy Liebesman, John A. Conway May 2018

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet, Yvette Joy Liebesman, John A. Conway

Court Briefs

Untethered to a sufficient public policy interest, right of publicity claims have exploded nationwide. Plaintiffs have asserted claims against inspirational plaques featuring civil rights icons, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824 (11th Cir. 2016),artwork commemorating significant events, Moore v. Weinstein Co., LLC, 545 Fed. App’x. 405 , 407 (6th Cir. 2013); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003), Wikipedia edits that truthfully connected an astronaut with the watch he wore on his Moon walk, Scott v. Citizen Watch Co. of Am., Inc., 17-CV-00436-NC ...


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark Jan 2018

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the ...


Reconstructing An Administrative Republic, Jeffrey A. Pojanowski Jan 2018

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid ...


The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter Oct 2017

The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter

Journal Articles

Scholars have long been divided over the role, function, and significance, if any, of oral argument in judicial decision-making.' Federal courts seem similarly divided, as some circuits routinely grant oral argument in almost every case, while others grant oral argument in only a small fraction of appeals. This divide should not be dismissed as merely an idiosyncratic debate or as a response to excessive workload, particularly when one considers that approximately 53,000 appeals were filed in federal courts of appeals in the year ending September 30, 2016.2 Since the Supreme Court grants certiorari in only approximately eighty cases ...


Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Appellant And In Support Of Reversal, Mark Mckenna, Rebecca Tushnet Sep 2017

Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Appellant And In Support Of Reversal, Mark Mckenna, Rebecca Tushnet

Court Briefs

ASTM’s fundamental complaint is about unauthorized use of its intangible content—the standards for which it claims copyright ownership. Dastar unambiguously holds, however, that only confusion regarding the source of physical goods is actionable under the Lanham Act; confusion regarding the authorship of the standards or their authorization is not actionable. ASTM cannot avoid Dastar just because Public Resource creates digital copies of those standards. Consumers encounter the ASTM marks only as part of the standards, into which ATSM chose to embed the marks. As a result, any “confusion” could only be the result of the content itself. Dastar ...


Brief Of Amici Curiae Intellectual Property Law Professors In Favor Of Judgement As A Matter Of Law, Mark Mckenna, Rebecca Tushnet, John A. Conway Jun 2017

Brief Of Amici Curiae Intellectual Property Law Professors In Favor Of Judgement As A Matter Of Law, Mark Mckenna, Rebecca Tushnet, John A. Conway

Court Briefs

Plaintiff’s false designation of origin and false endorsement claims, such as they are, rest on the assertion that defendants falsely represented themselves as the origin of intellectual property on which the Oculus Rift is based. Those claims are barred by Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), which holds that only confusion regarding the origin of physical goods is actionable under the Lanham Act.


Precedent And Speech, Randy J. Kozel Feb 2017

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within ...


Inside The 'Constitutional Revolution' Of 1937, Barry Cushman Jan 2017

Inside The 'Constitutional Revolution' Of 1937, Barry Cushman

Journal Articles

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number ...


Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jan 2017

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued ...


Countering The Majoritarian Difficulty, Amy Coney Barrett Jan 2017

Countering The Majoritarian Difficulty, Amy Coney Barrett

Journal Articles

In Our Republican Constitution, Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett’s prior work, that the government must justify incursions upon individual liberty. If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by ...


Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray Jan 2017

Multiple Chancellors: Reforming The National Injunction, Samuel L. Bray

Journal Articles

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts.

This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor ...


Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley Jan 2017

Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley

Journal Articles

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he ...


Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet May 2016

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet

Court Briefs

The District Court correctly determined that the challenged speech of Dr. Steven Novella was not commercial speech for purposes of applying the Lanham Act. Appellant’s argument to the contrary conflates “seeking profit” with “commercial speech.”


Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh Jan 2016

Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh

Journal Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law ...


Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski Jan 2016

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we ...


Congressional Originalism, Amy Coney Barrett, John Copeland` Nagle Jan 2016

Congressional Originalism, Amy Coney Barrett, John Copeland` Nagle

Journal Articles

Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents – are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision ...


Original Meaning And The Precedent Fallback, Randy J. Kozel Jan 2015

Original Meaning And The Precedent Fallback, Randy J. Kozel

Journal Articles

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield to contrary precedent.

This Article considers the role of judicial precedent not when it conflicts with the Constitution’s original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional ...


Patriation And Patrimony: The Path To The Charter, John Finnis Jan 2015

Patriation And Patrimony: The Path To The Charter, John Finnis

Journal Articles

This annotated Coxford Lecture is the first account dedicated to tracing the part played in the 1980-82 patriation of the Canadian Constitution by the British House of Commons, particularly by its Select Committee on Foreign Affairs. This committee, for which author was the adviser, investigated the propriety of the UK Parliament’s acceding to a request for amendment of the British North America Act 1867 (as amended) if the amendment were opposed by a substantial number of Provinces and it would affect their powers. Against the firm opposition of the Canadian government (secretly being assisted by the British government), the ...


Bond And The Vienna Rules, Roger P. Alford Jan 2015

Bond And The Vienna Rules, Roger P. Alford

Journal Articles

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.


Second Thoughts About The First Amendment, Randy J. Kozel Jan 2014

Second Thoughts About The First Amendment, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article contends ...


Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett Jan 2014

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Journal Articles

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is ...


Court-Packing And Compromise, Barry Cushman Jan 2013

Court-Packing And Compromise, Barry Cushman

Journal Articles

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer ...


Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel Jan 2013

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Journal Articles

Constitutional precedents give rise to a jurisprudential tug-of-war. On one side is the value of adhering to precedent and allowing the law to remain settled. On the other side is the value of departing from precedent and allowing the law to improve. In this Article, I contend that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method. My aim is to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation. I seek to demonstrate that although certain consequences of deviating from precedent can be studied ...


The Man On The Flying Trapeze, Barry Cushman Oct 2012

The Man On The Flying Trapeze, Barry Cushman

Journal Articles

Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression. The ...


Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel Jan 2012

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

Journal Articles

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that ...


The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark Jan 2012

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect ...


The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett Jan 2011

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Journal Articles

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our ...