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Full-Text Articles in Law
The Limits Of Enumeration, Richard A. Primus
The Limits Of Enumeration, Richard A. Primus
Articles
According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …
The Bond Court's Institutional Truce, Monica Hakimi
The Bond Court's Institutional Truce, Monica Hakimi
Articles
As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
The Functions Of Ethical Originalism, Richard A. Primus
The Functions Of Ethical Originalism, Richard A. Primus
Articles
Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …
Public Consensus As Constitutional Authority, Richard A. Primus
Public Consensus As Constitutional Authority, Richard A. Primus
Articles
Barry Friedman's new book The Will of the People attempts to dissolve constitutional law's countermajoritariand ifficulty by showing that, in practice,t he Supreme Court does only what the public will tolerate. His account succeeds if "the countermajoritarian difficulty" refers to the threat that courts will run the country in ways that contravene majority preference, but not if the "the countermajoritarian difficulty" refers to the need to explain the legitimate sources of judicial authority in cases where decisions do contravene majority preference. Friedman's book does not pursue the second possibility, and may suggest that doing so is unimportant, in part because …
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson
Articles
Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …
Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz
Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz
Articles
Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, …
The Riddle Of Hiram Revels, Richard A. Primus
The Riddle Of Hiram Revels, Richard A. Primus
Articles
In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …
A Government Of Limited Powers, Carl E. Schneider
A Government Of Limited Powers, Carl E. Schneider
Articles
Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …
Art Of Judgement In Planned Parenthood V. Casey, James Boyd White
Art Of Judgement In Planned Parenthood V. Casey, James Boyd White
Articles
This article was excerpted and abridged with permission from a chapter in Professor White's recent book Acts of Hope: Creating Authority in Literature, Law, and Politics. In the book, he explores the nature of authority in various cultural contexts. Here he examines the Joint Opinion in Planned Parenthood v. Casey, which has been attacked both from the right, on the grounds that it tried to keep Roe v. Wade alive, and from the left, on the grounds that it significantly weakens the force of that case. Professor White, by contrast, admires it greatly, and in this chapter explains …
Justice And The Bureaucratization Of Appellate Courts, Joseph Vining
Justice And The Bureaucratization Of Appellate Courts, Joseph Vining
Articles
The author notes the growing bureaucratization of appellate justice in the United States and, in particular, the drafting of opinions by law clerks rather than by judges. Taking the Supreme Court of the United States as an example, and comparing its internal procedure with that of large administrative agencies, he questions whether the method of analysis familiarly used by lawyers to arrive at an authoritative statement of law is applicable to legal texts bureaucratically produced. He suggests that legal method and its presuppositions are ultimately associated with the authority of law, and concludes that there may be critical losses not …
Justice, Bureaucracy, And Legal Method, Jospeh Vining
Justice, Bureaucracy, And Legal Method, Jospeh Vining
Articles
In the real world justice denied is not justice. Talking from the beginning about access to justice, rather than simply justice, emphasizes in a salutary way this commonplace of citizen and client. Justice that is inaccessible, delayed, refused does not just sit there glowing like a grail, which those separated from it may contemplate and yearn for. It is only in imagining that justice is available to someone, and in imagining what it would be like to be that someone, that one can see the thing as justice at all. To put it in economic terms, justice is not a …
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Articles
Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …
Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates
Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates
Articles
Four and one-half centuries later the "sovereign state" of Virginia sued the "sovereign state" of West Virginia to recover a sum of money alleged to be due upon the agreement of West Virginia to assume its proportionate share of the debt of the old state of Virginia. The suit was brought in the Supreme Court of the United States, which after prolonged consideration rendered judgment for the plaintiff. No execution or other compulsory process was issued, however. But now after delays for various reasons and pretexts urged by West Virginia the court is compelled to face the problem of what …
A Modern Evolution In Remedial Rights - The Declaratory Judgment, Edson R. Sunderland
A Modern Evolution In Remedial Rights - The Declaratory Judgment, Edson R. Sunderland
Articles
In early times the basis of jurisdiction is the existence and the constant assertion of physical power over the parties to the action, but as civilization advances the mere existence of such power tends to make its exercise less and less essential. If this is true, it must be because there is something in civilization itself which diminishes the necessity for a resort to actual force in sustaining the judgments of courts. And it is quite clear that civilization does supply an element which is theoretically capable of entirely supplanting the exercise of force in the assertion of jurisdiction. This …
The New Federal Equity Rules, Robert E. Bunker
The New Federal Equity Rules, Robert E. Bunker
Articles
On November 4, 1912 the Supreme Court of the United States, by formal order, adopted and established a code of rules for the courts of equity of the United States, which should take the place of all rules theretofore prescribed by the Supreme Court and then in force. Rule 81 provides: "These rules shall be in force on and after February 1, 1913, and shall govern all proceedings in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which cannot be changed without doing substantial injustice, the …
Limits To State Control Of Private Business, Thomas M. Cooley
Limits To State Control Of Private Business, Thomas M. Cooley
Articles
The present purpose is to inquire whether, in the matter of the regulation of property rights and of business, legislation has not of late been occupying doubtful, possibly unconstitutional grounds. The discussion in the main must be limited to fundamental.-principles, aided by such light as legal and constitutional history may throw upon them, since the express provisions of the constitutions can give little assistance. They always contain the general guaranty of due process of law to life, liberty, and property, but in other particulars they for the most part leave protection to principles which have come from the common law. …
Some Checks And Balances In Government, Thomas M. Cooley
Some Checks And Balances In Government, Thomas M. Cooley
Articles
The purpose of the present paper is not to discuss the broad general subject of checks and balances in this, or any other, government. but to call attention to a few considerations only. These, in the main, affect the executive and the judiciary, rather than the legislature; and they will serve to show, perhaps, that neither of them can always, and under all circumstances, rely upon any very sure protection to its legitimate powers. It is one thing, unfortunately, to put intricate machinery in motion, and another, and quite a different, thing, to make it, under unforeseen occurrences, work out …