Law Commons^™

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

A Short History Of Sex And Citizenship: The Historians' Amicus Brief In Flores-Villar V. United States, Kristin Collins

Faculty Scholarship

The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last …

Optimal Specificity In The Law Of Separation Of Powers: The Numerous Clauses Principle, Gary S. Lawson

Faculty Scholarship

In this response to Professor John Manning’s Separation of Powers as Ordinary Interpretation, Professor Gary Lawson agrees with Manning’s argument that there is no overarching constitutional principle of “optimal specificity.” Lawson argues, however, that there are other overarching principles that are fairly derivable from the text, such as a principle of “decisional independence.” Moreover, Lawson suggests a bigger potential problem with Manning’s argument: when judges apply functionalist or formalist reasoning to decide cases, they may be engaging in a qualitatively different activity than Manning assumes, and his careful interpretative analysis may therefore be largely beside the point.

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede

Faculty Scholarship

“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the undesired result …

What State Constitutional Law Can Tell Us About The Federal Constitution, Joseph Blocher

Faculty Scholarship

Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to …

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Faculty Scholarship

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …

Justice Stevens And The Obligations Of Judgment, David Pozen

Faculty Scholarship

How to sum up a corpus of opinions that spans dozens of legal fields and four decades on the bench? How to make the most sense of a jurisprudence that has always been resistant to classification, by a jurist widely believed to have "no discernible judicial philosophy"? These questions have stirred Justice Stevens' former clerks in recent months. Since his retirement, many of us have been trying to capture in some meaningful if partial way what we found vital and praiseworthy in his approach to the law. There may be something paradoxical about the attempt to encapsulate in a formula …

The Rule Of Law As A Law Of Standards, Jamal Greene

Faculty Scholarship

Justice Antonin Scalia titled his 1989 Oliver Wendell Holmes Lecture at Harvard Law School The Rule of Law as a Law of Rules. The lecture posed the sort of dichotomy that has become a familiar feature of Justice Scalia's jurisprudence and of his general approach to judging. On one hand are judges who recognize that the only legitimate means by which they may adjudicate cases in a democracy is to seek to do so through rules of general application. On the other hand are those judges who generally prefer to adopt an all-things considered balancing approach to adjudication. This latter …

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 …

Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …

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 …

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

Constitutionalizing Local Politics, Joseph Blocher, Ilan Graff

Faculty Scholarship

No abstract provided.

Popular Constitutionalism And The State Attorneys General, Joseph Blocher

Faculty Scholarship

In her article Dead or Alive: Originalism as Popular Constitutionalism in Heller, Professor Reva Siegel argued that the Supreme Court’s opinion in District of Columbia v. Heller relied on originalism to enforce understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. In this Response, Professor Joseph Blocher argues that those understandings reappeared in McDonald v. City of Chicago, in part through the efforts of thirty-eight state attorneys general (SAGs) who filed an amicus brief urging the Court to incorporate the Second Amendment against the states. The SAGs invoked federalism, but their arguments …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Golan V. Holder: Copyright In The Image Of The First Amendment, David L. Lange, Risa J. Weaver, Shiveh Roxana Reed

Faculty Scholarship

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremecy, Gary S. Lawson

Faculty Scholarship

With Stare Decisis and Constitutional Text, 1 Jonathan Mitchell has produced what I think is the most interesting and creative textual defense2 (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases.3 Mitchell’s careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule—a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct …

The Freedom Of Health, Abigail Moncrieff

Faculty Scholarship

What would have happened if the Patient Protection and Affordable Care Act (PPACA) really had authorized government “death panels” that would decide whether an elderly patient could get treatment? Leaving aside commerce clause and other constraints particular to Congress, would that kind of direct healthcare rationing be a constitutional exercise of governmental power in the United States? I think not. I argue here that an emergent substantive due process constraint would invalidate such an exercise; direct rationing of that kind would violate a constitutional “freedom of health” that is nascent in Supreme Court jurisprudence. Based on that logic, I argue …

Toward A Geopolitics Of The History Of International Law In The Supreme Court – Remarks By Lori F. Damrosch, Lori Fisler Damrosch

Faculty Scholarship

I am pleased to have been one of the contributors to the forthcoming volume that provides the occasion for the present panel.' David Sloss and his co-editors, William Dodge and Michael Ramsey, deserve congratulations for coming up with a concept for a much-needed research project, for assembling a group of scholars from different disciplines, for organizing an authors' conference that was a model of collaborative interaction, and for exemplary editing of the papers. The volume examines an astounding number of cases involving international law at the Supreme Court and should become an indispensable reference for lawyers, scholars, and judges. The …

Louis Henkin (1917-2010), Lori Fisler Damrosch

Faculty Scholarship

Louis Henkin died in New York City on October 14, 2010, a few weeks short of his ninetythird birthday. He was in a class by himself at the intersection of international law, international politics, and the constitutional law of foreign relations in the second half of the twentieth century and the first years of the new millennium.