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Full-Text Articles in Law
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 …
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 …
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.
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 …
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.
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.