Law Commons^™

Firearm Contagion: A New Look At History, Rachel Martin, Michael Ulrich

Faculty Scholarship

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while …

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell

Faculty Scholarship

Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …

Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).

This Article offers an explanation for the difficulty in supporting this historical claim: Because …

The Problem Is The Court, Not The Constitution, Jonathan Feingold

Faculty Scholarship

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible "Decision of 1789" as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law's strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president's power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist …

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

Toward A Liberal Common Good Constitutionalism For Polarized Times, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

In Common Good Constitutionalism, Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. For the common good constitutionalist, a government is established primarily to do good things for people. It envisions an active government, including a strong president, a strong administrative state, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, …

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …