Law Commons^™

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, …

The Myth Of The Written Constitution, Todd E. Pettys

Todd E. Pettys

Many Americans have long subscribed to what this Article calls the myth of the written constitution—the claim that the nation’s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans’ attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to …

Abolishing The Time Tax On Voting, Elora Mukherjee

Elora Mukherjee

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 …

Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …

An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor

Indiana Journal of Global Legal Studies

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas …

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

Legislative Supremacy In The United States?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article revisits the “enrolled bill” doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the “enrolled bill” as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine’s main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, …

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …