Law Commons^™

"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger

Sabin Center for Climate Change Law

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments – along with the states – positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their …

Profiling And Consent: Stops, Searches And Seizures After Soto, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

Following Soto v State (1999), New Jersey was among the first states to enter into a comprehensive Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New …

Constitutionalising An Overlapping Consensus: The Ecj And The Emergence Of A Coordinate Constitutional Order, Charles F. Sabel, Oliver H. Gerstenberg

Faculty Scholarship

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

Skelos V. Paterson: The Surprisingly Strong Case For The Governor's Surprising Power To Appoint A Lieutenant Governor, Richard Briffault

Faculty Scholarship

On July 8, 2009, Governor David Paterson surprised New York's legal and political world by announcing his intention to appoint Richard Ravitch to fill the vacancy in the office of lieutenant governor. No New York governor had ever appointed a lieutenant governor before. Paterson's action was widely denounced as unauthorized and unconstitutional. Four months later, observers were even more astonished when the Court of Appeals in Skelos v. Paterson upheld the governor's action. This article explains why the governor and Court of Appeals were right to conclude that the governor had statutory and constitutional authority for his action. Indeed, the …

The Disposing Power Of The Legislature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type …

Direct Voting By Property Owners, Thomas W. Merrill

Faculty Scholarship

Direct voting by property owners is a widespread but controversial tool for resolving disputes over local collective goods. Direct voting has powerful advantages, in that it can harness the superior knowledge of many local minds, resolve controversies in a way that is perceived to be legitimate, and eliminate corrupt dealmaking. But it also has serious pitfalls, if local voters are poorly informed, or if they ignore external effects on other communities, or if the process is distorted by majoritarian or minoritarian bias. To capitalize on the advantages of local voting, and minimize the risks, this Article proposes that direct voting …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its …

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking …

Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill

Faculty Scholarship

We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between "originalists" and "nonoriginalists". In the statutory arena, we have a three-way battle between "textualists," "intentionalists", and "pragmatists." A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the Practice of interpretation. Real world interpreters – to a person – deploy a variety of interpretative methods when they seek to resolve …

Making Social Rights Conditional: Lessons From India, Madhav Khosla

Faculty Scholarship

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This …