Law Commons^™

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …

Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink

Duke Law Journal

First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need …

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

The Rest Is Silence: Chevron Deference, Agency Jurisdiction, And Statutory Silences, Jonathan H. Adler, Nathan A. Sales

Jonathan H Adler

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of “jurisdictional questions” that may arise in statutory interpretation. The article then surveys how courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court’s Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we …

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Mark Graber

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison …

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.

Judicial Review And American Constitutional Exceptionalism, Miguel Schor

Osgoode Hall Law Journal

This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it …

Keeping It Real: Judicial Review Of Asylum Credibility Determinations In The Eleventh Circuit After The Real Id Act, Tania Galloni

University of Miami Law Review

No abstract provided.

Brief Of Law Professors As Amici Curiae In Support Of Respondents, Summers V. Earth Island Inst., No. 07-463 (U.S. June 27, 2008), Richard J. Lazarus, Amanda C. Leiter, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Slides: Rethinking Western Water Law: Whatever Happened To The Public Interest?, Mark Squillace

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

15 slides

The Court, The Constitution, And The History Of Ideas, Scott D. Gerber

Vanderbilt Law Review

Several of the nation's most influential constitutional law scholars have been arguing for the better part of a decade that judicial review should be sharply limited, or eliminated altogether. The list includes such prominent thinkers as Professor Mark V. Tushnet of Harvard Law School, Professor Cass R. Sunstein of the University of Chicago Law School, and Dean Larry D. Kramer of Stanford Law School. In place of the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison, these leading voices of the legal academy call for "popular constitutionalism": a constitutional law that is defined outside of the …

Mapping Proportionality Review: Still A "Road To Nowhere", Rachel A. Van Cleave

Publications

This article examines how a majority of the Supreme Court went out of its way to vacate a punitive damages award in Philip Morris and further reinforced the inconsistency with which it applies the principle of proportionality. When it comes to punitive damages awards, a majority of Justices continue to convey distrust of juries and of trial and appellate court judges who review these awards. However, when it comes to terms of imprisonment, the Court has eschewed substantive review under the Eighth Amendment while insisting that the Sixth Amendment requires that all facts supporting an increase in a sentence be …

Taking State Constitution Seriously, Marvin Krislov, Daniel M. Katz

Cornell Journal of Law and Public Policy

No abstract provided.

Sometimes You Have To Go Backwards To Go Forwards: Judicial Review And The New National Security Exception To The Fourth Amendment, Sheerin N. Shahinpoor

Sheerin N. Shahinpoor

National security concerns have historically provided a strong basis for non-justiciable Executive Branch action; however, post 9/11, such actions have grown to encompass a greater number of American citizens' civil liberties. The federal judiciary's deferential treatment of national-security related conduct, particularly in the realm of suspicionless searches, occurs with dangerous frequency, and any semblance of meaningful review has been nearly eviscerated. The stakes involved in national security are weighty and, in many instances, present the courts with an artificial choice: uphold a potentially over-zealous suspicionless-search program but avoid danger, or strike down such a program in favor of civil liberties …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Frederick Mark Gedicks

A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other …

The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji

Michigan Law Review First Impressions

The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Michigan Law Review First Impressions

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

The Claim Construction Effect, Lee Petherbridge

Michigan Telecommunications & Technology Law Review

Claim construction refers to the task of construing, or interpreting, the words of patents' claims to establish the metes and bounds of a patent. Theoretically, the task of claim construction serves to operationalize the concept of "invention," which lies at the heart of the U.S. patent system.[...] Rather than focusing on the set of cases in which the Federal Circuit addresses claim construction, this study focuses on a set of cases defined by a different patent doctrine. The basic idea is to explore the impact of claim construction on other areas of patent law.[...] The hypothesis of the claim construction …

Searching For Chevron In Muddy Watters: The Roberts Court And Judicial Review Of Agency Regulations, Ann Graham

ann graham

SEARCHING FOR CHEVRON IN MUDDY WATTERS: THE ROBERTS COURT AND JUDICIAL REVIEW OF AGENCY REGULATIONS

Ann Graham

Abstract

In April 2007, the U.S. Supreme Court delivered its opinion in Watters v. Wachovia. The majority opinion did not invoke the classic administrative law analysis prescribed by the Two-Step Chevron Doctrine, which for more than twenty years has been the foundation of determining judicial deference to agency regulations. The Watters case presented a golden opportunity to clarify the Chevron Doctrine. Instead of taking that expected path, the Supreme Court dodged Chevron altogether – raising serious issues about why and what may be …

Justifying Motive Analysis In Judicial Review, Gordon G. Young

Faculty Scholarship

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or “designed to strike” at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …

The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber

Faculty Scholarship

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and …

Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin

Michigan Law Review First Impressions

Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.

Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin

Articles

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …

Does Congress Find Facts Or Construct Them - The Ascendance Of Politics Over Reliability, Perfected In Gonzales V. Carhart, Elizabeth De Coux

Cleveland State Law Review

The disparity between the rules of courts and the rules of Congress gives rise to this question: is the rigor-or lack of it-with which Congress evaluates the reliability of evidence an appropriate factor for courts to consider in deciding whether to defer to a congressional finding? In this Article, I consider whether Congress should adopt rules to fill the void. In Part I, I give a brief summary of the development and use of Congressional Committees. In Part II, I analyze several modern-day congressional hearings in an effort to examine the degree to which Congress and its committees require that …

Mccain’S Citizenship And Constitutional Method, Peter J. Spiro

Michigan Law Review First Impressions

Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

The Political Question Doctrine And Civil Liability For Contracting Companies On The “Battlefield”, Jeffrey F. Addicott

Faculty Articles

While the use of civilian contractors to support military operations is not a new phenomenon, their use in the War on Terror is unprecedented. The numbers of civilian contractors in active combat zones and the specific activities they perform have significant legal and policy ramifications.

Recent case law associated with civil complaints brought in American courts against contracting companies operating in battlefield environments has given rise to a “political question” doctrine. This doctrine excludes from judicial review all controversies involving policy choices and other value determinations that the Constitution reserves to the Congress and the Executive for resolution.

Due to …