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Full-Text Articles in Law
Administrative Harms, Philip A. Hamburger
Administrative Harms, Philip A. Hamburger
Faculty Scholarship
Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs.
Democratic Policing Before The Due Process Revolution, Sarah Seo
Democratic Policing Before The Due Process Revolution, Sarah Seo
Faculty Scholarship
According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …
The Present Crisis In American Bail, Kellen R. Funk
The Present Crisis In American Bail, Kellen R. Funk
Faculty Scholarship
More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …
Constitutionalizing Systemic Administration, Gillian E. Metzger
Constitutionalizing Systemic Administration, Gillian E. Metzger
Faculty Scholarship
Will the national administrative state as we know it survive? That question has risen to the fore with the advent of the Trump presidency. The President’s chief strategist has proclaimed “deconstructing the administrative state” to be one of the main pillars of the Trump Administration. Philip Rucker & Robert Costa, Bannon Vows a Daily Fight for ‘Deconstruction of the Administrative State,’ WASH. POST (Feb. 23, 2017). Early Trump actions have been notably anti-regulatory, including requirements that agencies repeal two regulations for each new regulation they propose, keep additional regulatory costs at zero, and plan for reorganization.
The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss
The Challenges Of Fitting Principled Modern Government – A Unified Public Law – To An Eighteenth Century Constitution, Peter L. Strauss
Faculty Scholarship
The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining …
The Constitutional Duty To Supervise, Gillian E. Metzger
The Constitutional Duty To Supervise, Gillian E. Metzger
Faculty Scholarship
The IRS targets Tea Party organizations' applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader …
What The New Deal Settled, Jamal Greene
What The New Deal Settled, Jamal Greene
Faculty Scholarship
Not since George H.W. Bush banned it from the menu of Air Force One did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA"). Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision – that's eleven more appearances than …
Abolishing The Time Tax On Voting, Elora Mukherjee
Abolishing The Time Tax On Voting, Elora Mukherjee
Faculty Scholarship
A “time tax” is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a …
Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger
Ingenious Arguments Or A Serious Constitutional Problem? A Comment On Professor Epstein's Paper, Philip A. Hamburger
Faculty Scholarship
In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.
The first set of …
The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen
The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen
Faculty Scholarship
In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority.
The attacks are fueled in part by the growing influence …
Lawrence And The Right To Metaprivacy, Jamal Greene
Lawrence And The Right To Metaprivacy, Jamal Greene
Faculty Scholarship
Americans take seriously the difference between acts and ideas. We remain mystified, for example, by the to-do about the cartoons depicting the Prophet Muhammad. The act-idea distinction is alive and well in our culture, and it remains largely intact in American law. No store owner puts up a sign saying, “You covet it, you bought it!” If you want to show your commitment to “manliness” by refusing to hire women, you’re out of luck. Don’t want to pay your taxes because you don’t like the Administration’s views? Move to Canada. We let the government erect at least rudimentary boundaries between …
The Landscape Of Constitutional Property, Thomas W. Merrill
The Landscape Of Constitutional Property, Thomas W. Merrill
Faculty Scholarship
The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before …
Foreign States And The Constitution, Lori Fisler Damrosch
Foreign States And The Constitution, Lori Fisler Damrosch
Faculty Scholarship
This article does not advocate judicial abstention from deciding the constitutional claims of foreign sovereigns. Rather, the argument is that constitutional claims against the actions of the federal political branches must fail on the merits because of the relationship of foreign states to the federal structure. When, on the other hand, a claim does not directly confront or conflict with the political branches' foreign policy, the federal courts should adjudicate the merits of foreign state claims by applying constitutional jurisprudence to sustain or reject the claim. Part III of this article elaborates upon the relationship between the thesis in Part …
Government By Judiciary: The Transformation Of The Fourteenth Amendment, Gerard E. Lynch
Government By Judiciary: The Transformation Of The Fourteenth Amendment, Gerard E. Lynch
Faculty Scholarship
As its title suggests, Raoul Berger's Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian's book, strongest when using the historian's tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms …
Constitutional Regulation Of Provisional Creditor Remedies: The Cost Of Procedural Due Process, Robert E. Scott
Constitutional Regulation Of Provisional Creditor Remedies: The Cost Of Procedural Due Process, Robert E. Scott
Faculty Scholarship
In recent years a series of Supreme Court decisions has purported to envelop the rights of defaulting debtors in an enlarged concept of procedural due process. The central theme underlying this development is clearly an attempt by the Court to impose some degree of constitutional control on the exercise of provisional creditor remedies. The path that leads from Sniadach v. Family Finance Corp. to North Georgia Finishing, Inc. v. Di-Chem, Inc., is however, far from clear and the cases have provoked serious questioning of the meaning and impact of this doctrine. Due process as reflected in Sniadach and Fuentes …
The Reality Of Procedural Due Process – A Study Of The Implementation Of Fair Hearing Requirements By The Welfare Caseworker, Robert E. Scott
The Reality Of Procedural Due Process – A Study Of The Implementation Of Fair Hearing Requirements By The Welfare Caseworker, Robert E. Scott
Faculty Scholarship
The constitutional mandates of procedural due process have been more sharply defined in recent years as a result of the decision of the Supreme Court in Goldberg v. Kelly. Although the full extent of the doctrine has not yet been delimited, the core proposition seems well established that in the absence of an overriding governmental interest, procedural -due process requires that an individual be accorded notice and a hearing prior to an administrative decision that would adversely affect his ability to subsist by contemporary standards. In applying this principle to the termination of public assistance payments, the Court in …
First Amendment "Due Process", Henry Paul Monaghan
First Amendment "Due Process", Henry Paul Monaghan
Faculty Scholarship
A number of recent Supreme Court opinions, primarily in the obscenity area, have fastened strict procedural requirements on governmental action aimed at controlling the exercise of first amendment rights. Professor Monaghan believes that there are two basic principles that can be distilled from these cases: that a judicial body, following an adversary hearing, must decide on the protected character of the speech, and that the judicial determination must either precede or immediately follow any governmental action which restricts speech. The author argues that these two broad principles should limit any governmental activity which affects freedom of speech, no matter how …