Law Commons^™

Transgender Rights & The Eighth Amendment, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo …

Legislatures, Executives And Political Control Of Government, Gillian E. Metzger

Faculty Scholarship

This chapter examines how political control over government is exercised today in the UK, the US, and France, focusing on control of the executive branch by the legislature and control of the administrative executive by the political executive. These three jurisdictions were chosen because they are paradigmatic examples of different political regimes: parliamentarism, separation of powers presidentialism, and semi-presidentialism. In theory, these different institutional structures should affect how political control is understood and wielded. In the traditional Westminster parliamentary model, for example, the government is formed from the leadership of the majority party in Parliament and it is the government …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …

Petition For Writ Of Certiorari, Kosilek V. O'Brien, Jennifer Levi, Joseph L. Sulman, Abigail K. Hemani, Michele E. Connolly, James P. Devendorf, Jamie A. Santos, Christine Dieter

Faculty Scholarship

Jennifer Levi, on behalf of Gay & Lesbian Advocates & Defenders, was one of the Authors of the Petition for Writ of Certiorari, filed in the Supreme Court of the United States on behalf of the Petitioner, Michelle Kosilek, in Kosilek v. O'Brien. Questions presented to the Court by the Petitioner were 1.) whether appellate courts must parse “ques­tions that present elements both factual and legal” into their factual and legal components, so that all factual findings can be reviewed for clear error, or whether, as the First Circuit ruled, they may review such questions as a whole along …

The Voting Rights In Winter: The Death Of A Superstatute, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

The Voting Rights Act (“VRA”), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today’s voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is never …

One(?) Nation Over-Extended, Gary S. Lawson

Faculty Scholarship

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …

Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller

Faculty Scholarship

In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.

Reverse-Commandeering, Margaret Hu

Faculty Scholarship

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young

Faculty Scholarship

No abstract provided.

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Faculty Scholarship

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Firearm Localism, Joseph Blocher

Faculty Scholarship

Second Amendment doctrine is largely becoming a line-drawing exercise, as courts try to determine which “Arms” are constitutionally protected, which “people” are permitted to keep and bear them, and in which ways those arms and people can be regulated. But the developing legal regime has yet to account for one potentially significant set of lines: the city limits themselves. In rural areas, gun crime and gun control are relatively rare, and gun culture is strong. In cities, by contrast, rates of violent gun crime are comparatively high, and opportunities for recreational gun use are scarce. And from colonial Boston to …

Direct And Indirect U.S. Government Debt, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …

Not The Power To Destroy: An Effects Theory Of The Tax Power, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient …

Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …

Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First

Faculty Scholarship

Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related lawsuits” …

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a …

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes—or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by imposing …

State Action And Corporate Human Rights Liability, Curtis A. Bradley

Faculty Scholarship

This essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute. It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. § 1983. It also argues that, even if it were appropriate to borrow in this manner from the Section 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds.

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

Collective Action Federalism: A General Theory Of Article I, Section 8, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own.

Subsequent interpretations of Section …

Clear Statement Rules And Executive War Powers, Curtis A. Bradley

Faculty Scholarship

This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism.

The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative …

White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller

Faculty Scholarship

In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had …

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.