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Full-Text Articles in Law

Truth, Justice, And The American Constitution, Michael C. Dorf Feb 2015

Truth, Justice, And The American Constitution, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky Feb 2015

Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky

Michael C. Dorf

No abstract provided.


How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf Feb 2015

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

Michael C. Dorf

The federal statute known as the “debt ceiling” limits total borrowing by the United States. Congress has repeatedly raised the ceiling to authorize necessary borrowing, but a political standoff in 2011 nearly made it impossible to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling, while others responded that such borrowing would violate the separation of powers and therefore that the president should refuse to spend appropriated funds. This Article analyzes the choice the president nearly faced in summer 2011, and which he or a successor …


Dynamic Incorporation Of Foreign Law, Michael C. Dorf Feb 2015

Dynamic Incorporation Of Foreign Law, Michael C. Dorf

Michael C. Dorf

Lawmaking bodies in one polity sometimes incorporate the law of another polity “dynamically,” so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. However, dynamic incorporation delegates lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such sessions entail a democratic loss. Accordingly, dynamic incorporation of …


A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf Feb 2015

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Michael C. Dorf

No abstract provided.


The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf Feb 2015

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Shared Constitutional Interpretation, Michael C. Dorf, Barry Friedman Feb 2015

Shared Constitutional Interpretation, Michael C. Dorf, Barry Friedman

Michael C. Dorf

In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights. This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been …


Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf Feb 2015

Same-Sex Marriage, Second-Class Citizenship, And Law's Social Meanings, Michael C. Dorf

Michael C. Dorf

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter into marriage convey the social meaning that gays and lesbians are second-class citizens? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? When public schools teach evolution but not creationism, do they show disrespect for creationists? Different audiences reach different conclusions about the …


The Heterogeneity Of Rights, Michael C. Dorf Feb 2015

The Heterogeneity Of Rights, Michael C. Dorf

Michael C. Dorf

What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional …


Federal Governmental Power: The Voting Rights Act, Michael C. Dorf Feb 2015

Federal Governmental Power: The Voting Rights Act, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Instrumental And Non-Instrumental Federalism, Michael C. Dorf Feb 2015

Instrumental And Non-Instrumental Federalism, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Dicta And Article Iii, Michael C. Dorf Feb 2015

Dicta And Article Iii, Michael C. Dorf

Michael C. Dorf

No abstract provided.


The Coherentism Of Democracy And Distrust, Michael C. Dorf Feb 2015

The Coherentism Of Democracy And Distrust, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Interpretive Holism And The Structural Method, Or How Charles Black Might Have Thought About Campaign Finance Reform And Congressional Timidity, Michael C. Dorf Feb 2015

Interpretive Holism And The Structural Method, Or How Charles Black Might Have Thought About Campaign Finance Reform And Congressional Timidity, Michael C. Dorf

Michael C. Dorf

No abstract provided.


The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf Feb 2015

The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff Feb 2015

Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff

Michael C. Dorf

Politics is the most difficult domain for constitutional law. As practiced in the United States, the aim of constitutionalism is both to provide a foundation for democratic governance and a limitation on the scope of such politics. The Constitution is supposed to enable democratic politics and establish its outer bounds. Yet the original Constitution performed this task only inferentially, leaving most of the details to either subsequent amendments or, more centrally, to judicial interpretation. This in turn leads to a fundamental question: what are the bounds of judicial intervention into the political arena? Although this is an old question, it …


A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf Feb 2015

A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf

Michael C. Dorf

Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss’s landmark article appeared, Supreme …


Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf Feb 2015

Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Be Careful What You Wish For, Michael C. Dorf Feb 2015

Be Careful What You Wish For, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf Feb 2015

Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Fallback Law, Michael C. Dorf Feb 2015

Fallback Law, Michael C. Dorf

Michael C. Dorf

Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including "fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications. However, fallback law can and sometimes does take the express form of substitute provisions. Fallback law can raise a surprisingly large number of constitutional and policy questions. A fallback provision itself must be constitutional, but how to discern the constitutionality of the …


Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf Feb 2015

Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf

Michael C. Dorf

In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would predictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …


An Institutional Approach To Legal Indeterminacy, Michael C. Dorf Feb 2015

An Institutional Approach To Legal Indeterminacy, Michael C. Dorf

Michael C. Dorf

For over a generation, academic jurisprudence and constitutional theory have attempted to reconcile, on the one hand, the rule of law and the Constitution's fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the …


Identity Politics And The Second Amendment, Michael C. Dorf Feb 2015

Identity Politics And The Second Amendment, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf Feb 2015

Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf

Michael C. Dorf

No abstract provided.


The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf Feb 2015

The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Frankenstein's Monster Or Spandrel? The Vices And Virtues Of Legal Retrofitting (Program), Michael C. Dorf Feb 2015

Frankenstein's Monster Or Spandrel? The Vices And Virtues Of Legal Retrofitting (Program), Michael C. Dorf

Michael C. Dorf

No abstract provided.


No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf Feb 2015

No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf

Michael C. Dorf

No abstract provided.


The Aspirational Constitution, Michael C. Dorf Feb 2015

The Aspirational Constitution, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Legal Indeterminacy And Institutional Design, Michael C. Dorf Feb 2015

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Michael C. Dorf

No abstract provided.