Law Commons^™

The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson

Faculty Scholarship

The Constitution creates very few federal offices. It creates the House and Senate,1 the Speaker of the House2 and the President pro tempore of the Senate,3 the President,4 the Vice President,5 and the Supreme Court6--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission7 and who Congress may impeach and remove,8 but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power9 and the Vice President's modest voting …

The Fog Of Certainty, Robert B. Ahdieh

Faculty Scholarship

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”

For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Scholarship

This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

Presidential Popular Constitutionalism, Jedediah Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …

Heller High Water? The Future Of Originalism, Jamal Greene

Faculty Scholarship

Has originalism won? It's easy to think so, judging from some of the reaction to the Supreme Court's recent decision in District of Columbia v. Heller. The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court's history that a gun control law violated the Second Amendment, Justice Scalia's opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he …

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

Property And Speech In ‘Summum’, Joseph Blocher

Faculty Scholarship

No abstract provided.

‘The Federalist’ Abroad In The World, Donald L. Horowitz

Faculty Scholarship

This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

Unshackling Speech (Book Review), David L. Lange

Faculty Scholarship

Reviewing, Brian C. Anderson and Adam D. Thierer, A Manifesto for Media Freedom (2008))

Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund

Faculty Scholarship

Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …

Cross-Examining Film, Jessica Silbey

Faculty Scholarship

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …

It Depends, Gary S. Lawson

Faculty Scholarship

Peter Strauss stated at the outset of this Symposium that the participants were chosen in part for the likelihood that they would generate “intelligent disagreement.” By that standard, I may have been a poor choice--and if that is the case, I will leave it to the reader to determine whether it is a function of the first or second term in the quoted phrase. At first glance, it looks as though I sharply disagree with Rick Pildes and Harold Bruff about whether the PCAOB's members are principal officers who must be appointed by the President with the advice and consent …