Law Commons^™

Reliance Interests In Statutory And Constitutional Interpretation, William N. Eskridge Jr., John Garver Professor Of Jurisprudence

Vanderbilt Law Review

People and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public “reliance interests” are the “dark matter” of America’s law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine.

Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation-—namely-—textualism or original …

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

The Ghost Of John Hart Ely, Ryan D. Doerfler, Samuel Moyn

Vanderbilt Law Review

The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Federalism And The Military Power Of The United States, Robert Leider

Vanderbilt Law Review

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.

This …

"Human Rights, Responsibilities, And Democracy," Comments On Tasioulas And Moyn Papers: "Symposium On The Future Of International Human Rights Law", Kathryn Sikkink

Vanderbilt Journal of Transnational Law

It is a pleasure and a challenge to comment on these two very different Articles, "Saving Human Rights from Human Rights Law," by John Tasioulas, and 'On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory," by Samuel Moyn. Both are rich, complex, and thought-provoking. To the degree they share any common dimension, it would be their skepticism toward human rights law, and in particular toward the judicialization of human rights law. But the skepticism comes from quite different directions and from their different disciplines. In the case of Tasioulas's paper, the skepticism derives from his belief that legal human …

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Vanderbilt Law Review

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Vanderbilt Law Review

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today's most …

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law Review

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Constitutionalizing Corporate Law, Elizabeth Pollman

Vanderbilt Law Review

The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity …

Original Meaning And The Precedent Fallback, Randy J. Kozel

Vanderbilt Law Review

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution's original meaning should yield to contrary precedent. This Article considers the role of judicial precedent not when it conflicts with the Constitution's original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The …

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

The Obligation Of Members Of Congress To Consider Constitutionality While Deliberating And Voting: The Deficiencies Of House Rule Xii And A Proposed Rule For The Senate, Russ Feingold

Vanderbilt Law Review

Most scholarly attention on constitutional interpretation is focused on the judicial branch and its role in our system of separation of powers. Nonetheless, constitutional interpretation should not take place solely in the courts. Rather, history suggests our Framers envisioned that members of Congress, as well as the President and the courts, would have an independent and important role to play in interpreting our Constitution. Yet this obligation has eroded such that House Speaker John Boehner, with the support of the Tea Party and his Republican colleagues, called for a "sea change" in the way the House of Representatives operates, with …

Constitutional Limitations On Punitive Damages: Ambiguous Effects And Inconsistent Justifications, Benjamin J. Mcmichael

Vanderbilt Law Review

Punitive damages occupy a special place in the U.S. legal system. Courts award them in very few cases, yet they have been the center of tort reform efforts because of their controversial nature.' This controversy centers around the purposes for which punitive damages are awarded-to punish reprehensible conduct and to deter future bad acts. While compensatory damages exist to redress specific harms and to compensate a victim for a particular harm suffered, punitive damages exist to further the much broader social goals of retribution and deterrence.

Because punitive damages must be calibrated to achieve these broad social goals, they necessarily …

Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan

Vanderbilt Law Review

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …

One New President, One New Patriarch, And A Generous Disregard For The Constitution:, Robert C. Blitt

Vanderbilt Journal of Transnational Law

The government of Russia and the Russian Orthodox Church (ROC)--the country's predominant religious group--recently underwent back-to-back changes in each institution's respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church-state relations in the Russian Federation. Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation's constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enriquez

Vanderbilt Journal of Transnational Law

This Article builds upon Philip C. Jessup's revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-&-vis international law. This theory, called metanationalism, rejects Harold Koh's theory of transnationalism and demonstrates that …

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law Review

n Gonzales v. Carhart the Supreme Court invoked post- abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about emotions. A species of common sense, it seems obvious and universal to …

There Were Great Men Before Agamemnon, William R. Casto

Vanderbilt Law Review

John Marshall is the Agamemnon of Supreme Court history. He is universally considered the Court's greatest Justice, and rightly so. But there were great Justices before Marshall. One of those great Justices was James Iredell. No Justice in the Court's history has provided a more detailed or sophisticated explanation and justification of the doctrine of judicial review. Iredell needs a bard, and this Essay is my ode to his memory.

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Vanderbilt Law Review

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants,' and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Non-Judicial Precedent, Michael J. Gerhardt

Vanderbilt Law Review

This Article proposes a new paradigm for analyzing the role of precedent in constitutional law. The conventional perspective equates precedent with judicial decisions, particularly those of the Supreme Court, and almost totally ignores the constitutional significance of precedents made by public authorities other than courts. Yet, non- judicial actors produce precedents that are more pervasive than those made by courts in constitutional law. Non-judicial precedents are not only confined to the backwaters of constitutional law, but they also pertain to serious constitutional matters-presidential succession, secession, congressional power to remove Presidents and Justices, and the respective authorities of the President and …

The Geologic Strata Of The Law School Curriculum, Robert W. Gordon

Vanderbilt Law Review

The modest aim of this piece is to supply some historical background to the other contributions to this Symposium. The modern American law school curriculum is the product of a few but critical choices of design, some of them over a century old. In this Article, I seek to (1) outline how the basic structure and content of the modern American law school curriculum came into being and what were the main competitors that curriculum displaced; (2) describe some of the ways in which the curriculum's basic structure and content have changed since its inception; and (3) point to some …

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

Vanderbilt Journal of Entertainment & Technology Law

The goal of this article is a very modest one: to use one piece of music, the first movement of Beethoven's Eroica symphony, to consider how legal scholars, using the doctrinal principles they have developed to interpret the Constitution, would interpret the piece as conductors. This article makes no pretense of offering a new genre of legal hermeneutics; there is no suggestion here that a "law and musicology" movement will provide a comprehensive analytical framework which we can use to solve problems of Constitutional interpretation. Rather, this article suggests that musical interpretative "doctrines"--if so loose a collection of practices merits …

Are We There Yet?: Measuring Success Of Constitutional Reform, Maria Dakolias

Vanderbilt Journal of Transnational Law

Like many other countries in the world, the United Kingdom has been modernizing its constitutional arrangements. But unlike all other countries, there is no codified, written constitution. Since 1997, that unwritten constitution has undergone a radical overhaul. Taken together, the changes to systems and institutions represent the most sustained program of reform in the United Kingdom for a century. The main question is whether these reforms were successful. What does success mean? As is well known, implementation is the key to success. So evaluating the reforms and discussing successes and challenges are not only important for the U.K. internal dialogue …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

"The House Was Quiet And The World Was Calm The Reader Became The Book", Burt Neuborne

Vanderbilt Law Review

Professor Neuborne argues that we err in reading the Bill of Rights "in splendid isolation" as a randomly ordered set of clause-bound norms. Instead, he argues that the disciplined order and placement of the thirty-three ideas in the Bill of Rights, especially the six textual ideas united in the First Amendment, reveals a deep contextual structure imposed by the Founders that sheds important light on the meaning of the constitutional text. He argues that the "vertical" order of the first ten amendments, as well as the "horizontal" order of ideas within each amendment, provides important clues to a judge seeking …