Law Commons^™

A Truism With Attitude: The Tenth Amendment In Constitutional Context, Gary S. Lawson

Faculty Scholarship

The Tenth Amendment is caught in a crossfire hurricane. From one direction, it is dismissed as "but a truism"' with no significant constitutional function. From another direction, its unassuming language- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" 2-has inspired Byzantine doctrines concerning such matters as federal commandeering of state institutions,3 conditions on federal spending programs implemented by states,4 and federal regulation of state governmental institutions. 5 The Tenth Amendment thus appears to be either the constitutional equivalent of a …

Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

The nondelegation doctrine, as it has been traditionally understood, maintains that the federal Constitution places limits (however modest) on the kind and quantity of discretion that Congress can grant to other actors. Eric Posner and Adrian Vermeule have recently described this doctrine as a "neurotic burden"' on the legal system that "lacks any foundation in constitutional text and structure, in standard originalist sources, or in sound economic and political theory.''2 They agree that the Constitution forbids Congress from delegating the formal power to enact legislation through the Article I voting process,3 but they argue that "a statutory grant of authority …

Making A Federal Case Of It: Sabri V. United States And The Constitution Of Leviathan, Gary S. Lawson

Faculty Scholarship

The popular expression “Don't make a federal case out of it!” only makes sense if federal involvement is something unusual or special that is reserved for matters of urgent national interest. It assumes that a “federal case” is, or at least ought to be, something relatively rare and noteworthy.

For the founding generation, federal involvement in people's affairs, especially through the criminal law, was in fact a relatively rare and noteworthy event. In The Federalist, James Madison told the citizens of New York that the powers of the proposed new national government “will be exercised principally on external objects, as …

Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson

Faculty Scholarship

Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts.' This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order.2 As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants,3 people talk about wholesale jurisdiction-stripping far more than they actually do it.

Downsizing The Right To Petition, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The First Amendment provides that "Congress shall make no law... abridging.., the right of the people.., to petition the Government for a redress of grievances."1 Unlike the First Amendment's speech, press, and religion clauses, this "Petitions Clause" has not spawned an extensive body of case law or academic commentary. The right to petition has been, in many ways, the First Amendment's poor relation.

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problems is one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law. Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use, while others argue that originalism's indeterminacy is often overstated.