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Articles 1 - 21 of 21
Full-Text Articles in Law
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Regulations, Brannon P. Denning
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Regulations, Brannon P. Denning
Brannon P. Denning
Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally …
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Brannon P. Denning
In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …
Anti-Evasion Doctrines And The Second Amendment, Brannon P. Denning
Anti-Evasion Doctrines And The Second Amendment, Brannon P. Denning
Brannon P. Denning
This article, written for a symposium on the Second Amendment, examines recent lower court decisions for evidence that courts are -- or are not -- creating and applying "anti-evasion doctrines" (AEDs) in Second Amendment cases. Such doctrines prevent form-over-substance evasion of constitutional principles on the part of government actors. Early evidence suggests that courts are willing to employ AEDs to frustrate legislative efforts to nullify the core of the right to keep and bear arms for self-defense in the home recognized in Heller and McDonald.
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Restrictions, Brannon P. Denning
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Restrictions, Brannon P. Denning
Brannon P. Denning
Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally …
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
Using our now-famous "Five Takes" format, Glenn Reynolds and I analyze NFIB v. Sebelius from five different perspectives: (1) Sebelius as Marbury; (2) Sebelius as Bakke; (3) Sebelius and the "legitimating" power of judicial review; (4) Sebelius as a Thayerian decision; and (5) Sebelius as part of some long game of Chief Justice Roberts'.
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
Brannon P. Denning
In this brief comment on Ben Barton's "An Empirical Study of Supreme Court Justice Pre-Appointment Experience," I argue that appointing persons currently or formerly active in partisan politics would likely not benefit the Court as some have claimed and might affirmatively harm the Court as an institution.
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Brannon P. Denning
Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …
The Truth-In-Legislation Amendment: An Idea Whose Time Has Come, Brannon P. Denning
The Truth-In-Legislation Amendment: An Idea Whose Time Has Come, Brannon P. Denning
Brannon P. Denning
This short article, prepared for a Tennessee Law Review symposium on amending the U.S. Constitution, revisits an earlier proposal to amend the Constitution to include a single-subject amendment similar to those common in state constitutions.
Mcdonald V. Chicago: Five Takes, Brannon P. Denning, Glenn H. Reynolds
Mcdonald V. Chicago: Five Takes, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
McDonald v. Chicago made clear that the Second Amendment’s right to arms recognized in the 2008 Heller decision extends to individuals regardless of whether the infringement takes place at the hands of federal, state, or local officials. This brings to an end the first era of Second Amendment scholarship, in which discussion on the part of scholars was largely untempered by actual judicial authority. Now, though scholars may (and no doubt will) charge the Supreme Court with error, they are no longer writing on a blank slate. Instead, as with other areas of constitutional law, the discussion will focus on …
Common Law Constitutional Interpretation: A Critique, Brannon P. Denning
Common Law Constitutional Interpretation: A Critique, Brannon P. Denning
Brannon P. Denning
This is a review of David Strauss, The Living Constitution (2010). In it, I critique his claim that common law constitutional interpretation is a superior alternative to originalism.
Laws On Locally Grown Food And Constitutional Limits On State And Local Government: Suggestions For Policymakers And Advocates, Brannon P. Denning, Samantha Graff, Heather Wooten
Laws On Locally Grown Food And Constitutional Limits On State And Local Government: Suggestions For Policymakers And Advocates, Brannon P. Denning, Samantha Graff, Heather Wooten
Brannon P. Denning
Locally grown food laws that require, or provide incentives for, purchasing food grown within a defined geographic boundary are vulnerable to challenge under the U.S. Constitution’s restrictions on local and state laws that discriminate against goods and commerce from other states, known as the dormant Commerce Clause doctrine (DCCD). Policymakers and advocates for local food should understand the impact of these restrictions and should take advantage of an important exception to these restrictions when drafting policies to encourage purchase of locally grown food. In particular, they should (1) consider using the “market-participant exception” to the DCCD and tailor policies to …
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
This article, written for a symposium held at the University of California-Hastings, surveys lower court decisions applying Heller and the right to keep and bear arms it recognized to federal, state, and local gun laws. While no laws have, to date, been invalidated -- in part because of the strong signals sent by the Heller Court in the opinion -- the Court's recognition that the Second Amendment guarantees an individual right has altered the way in which courts treat gun ownership and, in some cases, has caused non-judicial actors to legislate "in the shadow" of Heller.
The "New Protectionism" And The American Common Market, Brannon P. Denning, Norman R. Williams
The "New Protectionism" And The American Common Market, Brannon P. Denning, Norman R. Williams
Brannon P. Denning
For nearly two centuries, the U.S. Constitution through the dormant Commerce Clause has protected the American common market from protectionist commercial state regulations and taxes. During the past two terms,however, the U.S. Supreme Court created a new exception to the dormant Commerce Clause for protectionist state and local taxes and regulations that favor public rather than private entities. In this Article, we describe this “New Protectionism” and argue that the Court’s embrace of it is profoundly misguided. As we document, there is no material difference, economically or constitutionally, between public protectionism and private protectionism. As illustrated by the variety of …
Publius For All Of Us, Brannon P. Denning
Publius For All Of Us, Brannon P. Denning
Brannon P. Denning
This reviews Dan Coenen's "The Story of the Federalist: How Hamilton and Madison Reconceived America," an outstanding introduction to The Federalist Papers and its political theory.
The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning
The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning
Brannon P. Denning
This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning--the usual focus of constitutional theory--and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in …
Heller's Future In The Lower Courts, Brannon P. Denning, Glenn H. Reynolds
Heller's Future In The Lower Courts, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
In this article, written shortly after the Heller decision, Glenn Reynolds and I speculate whether lower courts will implement Heller vigorously or, as happened with the Court's Commerce Clause cases, Lopez and Morrison, will render it largely a symbolic victory. While we note similarities between the Commerce Clause cases and Heller, we suggest important differences as well, that might make lower court resistance less likely.
Five Takes On District Of Columbia V. Heller, Brannon P. Denning, Glenn H. Reynolds
Five Takes On District Of Columbia V. Heller, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
This paper, written for a symposium in the Ohio State Law Journal, offers five different takes on various aspects of the Heller decision.
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Brannon P. Denning
This article argues that the historic incoherence of the dormant Commerce Clause doctrine reflects the Court's perpetual creation and discarding of decision rules designed to implement a constitutional command that had never been clarified. Drawing on the work of Mitch Berman and Kim Roosevelt, I articulate a constitutional command--prohibition of interstate commerce likely to destabilize political union--derived from the Constitution, then suggest decision rules that would implement that command. While some of my conclusions map onto current doctrine, I recommend that the Court abandon so-called "balancing" since it does not make sense as a decision rule, given the constitutional command …
Gonzales V. Carhart: An Alternate Opinion, Brannon P. Denning
Gonzales V. Carhart: An Alternate Opinion, Brannon P. Denning
Brannon P. Denning
This article, written as an mock Supreme Court opinion, addresses an issue not addressed in the Supreme Court's opinion upholding the federal Partial Birth Abortion Ban in Gonzales v. Carhart, 550 U.S. 124 (2007): Whether the ban was a valid exercise of Congress's Commerce Clause power. Applying the framework developed in Lopez and Morrison, the "Court" holds that it is not.
What Hath Raich Wrought? Five Takes, Brannon P. Denning, Glenn H. Reynolds
What Hath Raich Wrought? Five Takes, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
Written for a paper symposium on Gonzales v. Raich, 545 U.S. 1 (2005), we describe the effects of the decision on what had seemed a renewed interest on the part of the Court to limit federal power.
The Relevance Of Constitutional Amendments: A Response To David Strauss, Brannon P. Denning, John R. Vile
The Relevance Of Constitutional Amendments: A Response To David Strauss, Brannon P. Denning, John R. Vile
Brannon P. Denning
This article responds to David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001). Strauss had argued that constitutional amendments are neither necessary nor sufficient to produce lasting constitutional change. We respond that Strauss downplays their import in some circumstances. In any event, the evidence he musters, we argue, does not support his irrelevancy thesis.