Law Commons^™

Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher

Faculty Scholarship

Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.

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

Faculty Scholarship

No abstract provided.

Interpretive Contestation And Legal Correctness, Matthew D. Adler

Faculty Scholarship

No abstract provided.

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

The Right Not To Keep Or Bear Arms, Joseph Blocher

Faculty Scholarship

Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have. The Article concludes - albeit with some important qualifications - that a right not to keep or bear arms is …

“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 …

Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …

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 …

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

Rights To And Not To, Joseph Blocher

Faculty Scholarship

When and why should a “right to” include a “right not to”? If a person has a right to engage in an activity or to receive a particular form of procedural protection, under what circumstances should he also have a right not to engage in that activity or to refuse that process? The basic project of this Article is to show why these questions are important in American constitutional law, to explore how doctrine and scholarship have implicitly and sometimes awkwardly dealt with them, and to suggest normative frameworks with which they can be answered.

The Balkinization Of Originalism, James E. Fleming

Faculty Scholarship

This Article suggests that, with the publication of Jack Balkin's Living Originalism, we are witnessing the "Balkanization" of originalism (when originalism splits into warring camps) along with the "Balkinization" of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin's living originalism is what Ronald Dworkin has called a "moral reading" of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin's commitment to interpret the Constitution so as to …

Representing Injustice: Justice As An Icon Of Woman Suffrage, Kristin Collins

Faculty Scholarship

In this Essay, written as part of a symposium on Judith Resnik’s and Dennis Curtis's sumptuously illustrated volume Representing Justice, I offer a historically sensitive interpretation of the figure of Justice in woman suffrage spectacle and propaganda. American suffragists were drawn to Justice as a symbol of women's claim to political and legal rights. Why? Surely one reason is that, as Resnik and Curtis demonstrate, by the early twentieth century Justice had ascended as a distinctively resonant symbol of law and law's legitimacy in a democratic polity. Precisely because Justice was a legible symbol of law's legitimacy, she was ripe …