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The Liberal Assault On The Fourth Amendment, Christopher Slobogin Jan 2007

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As construed by the Supreme Court, the Fourth Amendment's reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today's law on the Warren Court's adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court. This essay argues that three other …


International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Wuerth Jan 2007

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …


Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi Jan 2007

Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi

Vanderbilt Law School Faculty Publications

In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate …


The Populist Safeguards Of Federalism, Robert A. Mikos Jan 2007

The Populist Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on …


Cunningham V. California - Case Comment, Rebecca Haw Allensworth Jan 2007

Cunningham V. California - Case Comment, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Sixth Amendment--Allocation of Fact-finding in Sentencing.--Apprendi v. New Jersey spawned a series of Supreme Court sentencing decisions which, when viewed together, are at best confusing and at worst contradictory. Commentators and courts have struggled to find a coherent governing principle uniting "Apprendi," "Blakely v. Washington," and "United States v. Booker." The holding in "Apprendi," originally described as a bright-line rule, has proved anything but. Last Term, in "Cunningham v. California," the Court added another chapter to the Apprendi saga when it declared unconstitutional California's Determinate Sentencing Law (DSL). Justice Ginsburg authored the majority opinion that overturned the California Supreme Court's …


Getting The Math Right, Paul H. Edelman Jan 2006

Getting The Math Right, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Over the last 40 years of one person, one vote jurisprudence, the Supreme Court has distilled a stable and predictable test for resolving the basic numerical issue in equal representation: how much population difference between districts is permissible? Yet there remains one area of representation into which the Court has refused to venture: apportionment of Congress. In its only opinion on the mechanics of the decennial of apportionment, the Court deferred to Congress. It deferred because, unlike districting, it could not find a single workable measure for apportionment. But the reason it could not find such a measure was that …


State Executive Lawmaking In Crisis, Jim Rossi Jan 2006

State Executive Lawmaking In Crisis, Jim Rossi

Vanderbilt Law School Faculty Publications

Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional …


The Puzzle Of State Constitutions, Jim Rossi Jan 2006

The Puzzle Of State Constitutions, Jim Rossi

Vanderbilt Law School Faculty Publications

In a series of groundbreaking articles published over the past fifteen years, James Gardner has led the charge to make state constitutionalism a part of the constitutional law discussion more generally. His new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System, steps beyond his study of specific issues in state constitutionalism to lay out an ambitious theory about how state constitutions should be interpreted based on their function within a federal system. Gardner's book is a significant scholarly effort to take state constitutions seriously, in a way that transcends any one jurisdiction or constitutional provision. Gardner's …


The Statutory President, Kevin M. Stack Jan 2005

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …


Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi Jan 2005

Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi

Vanderbilt Law School Faculty Publications

Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose …


Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi Jan 2005

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi

Vanderbilt Law School Faculty Publications

Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from …


The New Frontier Of State Constitutional Law, Jim Rossi, James A. Gardner Jan 2005

The New Frontier Of State Constitutional Law, Jim Rossi, James A. Gardner

Vanderbilt Law School Faculty Publications

In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized …


Waging War: Japan's Constitutional Constraints, John O. Haley Jan 2005

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …


The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack Jan 2004

The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack

Vanderbilt Law School Faculty Publications

There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct …


The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon Jan 2003

The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Professor Merrill ably demonstrates that Supreme Court decisions should be examined as the product of an inherently political institution. Observers who assert that Justices are best understood as prophets of the law are practicing an intellectual sleight of hand that allows them to ignore the non­ doctrinal factors that affect judicial behavior. Such an effort is understandable. The Court is a much more complicated subject if its rulings reflect nonlegal factors as well as legal ones. The desire, however, to ignore the true character of the Court produces accounts of its behavior that are inadequate, incorrect, or wholly without content. …


The Dimension Of The Supreme Court, Paul H. Edelman Jan 2003

The Dimension Of The Supreme Court, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.

In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is …


Beyond Accountability, Lisa Schultz Bressman Jan 2003

Beyond Accountability, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the …


Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry Jan 2002

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.


How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr. Jan 2002

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.

Vanderbilt Law School Faculty Publications

Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decision-making.” In his book, Stearns demonstrates that the U.S. Supreme Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing “social choice” economic theory, Professor Stearns argues that the Court strives to formulate rules that promote rationality and fairness. Perhaps the greatest strength of Stearns’ book is that he presents a grand unified theory of the Court’s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, …


Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman Jan 2002

Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …


The Law And Large Numbers, Paul H. Edelman Jan 2002

The Law And Large Numbers, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Can mathematics be used to inform legal analysis? This is not a ridiculous question. Law has certain superficial resem­blances to mathematics. One might view the Constitution and various statutes as providing "axioms" for a deductive legal sys­tem. From these axioms judges deduce "theorems" consisting of interpretation of these axioms in certain situations. Often these theorems are built on previously "proven" theorems, i.e. earlier decisions of the court. Of course some of the axioms might change, and occasionally a theorem that was once true becomes false; the former is a common feature of mathematics, the latter, though theoretically not possible in …


Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman Jan 2002

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.


The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen Jan 2001

The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our …


Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng Jan 2001

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …


Accommodation And Equal Liberty, Lisa Schultz Bressman Jan 2001

Accommodation And Equal Liberty, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …


Disentangling Deregulatory Takings, Jim Rossi, Susan Ackerman-Rose Jan 2000

Disentangling Deregulatory Takings, Jim Rossi, Susan Ackerman-Rose

Vanderbilt Law School Faculty Publications

Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them …


Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi Jan 2000

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …


The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George Jan 1999

The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George

Vanderbilt Law School Faculty Publications

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article …


Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier Jan 1999

Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier

Vanderbilt Law School Faculty Publications

It is a long-established principle that presidential impeachment is an appropriate remedy only for "high Crimes and Misdemeanors" of a public nature (with the possible exception of private crimes so heinous that the President "cannot be permitted to remain at large"). The crux of this Essay's argument is that the President's affair with Monica Lewinsky was a private matter that was not rendered "public" simply because Mr. Clinton lied about it. With its vote against removing the President, the Senate seemed to agree.


Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi Jan 1999

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …