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Articles 1 - 30 of 62
Full-Text Articles in Law
The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf
The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Truth, Justice, And The American Constitution, Michael C. Dorf
Truth, Justice, And The American Constitution, Michael C. Dorf
Michael C. Dorf
No abstract provided.
What Does The Second Amendment Mean Today?, Michael C. Dorf
What Does The Second Amendment Mean Today?, Michael C. Dorf
Michael C. Dorf
Proponents of the "individual right" interpretation of the Second Amendment frequently contend that those who disagree with this view apply a double standard, dismissing robust protection for individual firearms ownership and possession, while recognizing rights with less support. However, the Second Amendment has not been unfairly orphaned. The courts and commentators that reject the individual right scholars' claims are justified in doing so by the application of the same criteria commonly applied to other constitutional provisions, namely: doctrine; text; original understanding; structural inference; post adoption history; and normative considerations.
Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky
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
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
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
A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf
Michael C. Dorf
No abstract provided.
The Domain Of Reflexive Law, Michael C. Dorf
Iqbal And Bad Apples, Michael C. Dorf
Iqbal And Bad Apples, Michael C. Dorf
Michael C. Dorf
In addition to its important implications for federal civil procedure, the Supreme Court’s decision in Ashcroft v. Iqbal put the imprimatur of the Supreme Court on a troubling narrative of the excesses carried out by the Bush Administration in the name of fighting terrorism. In this “few bad-apples narrative,” harsh treatment of detainees—especially in the immediate wake of the attacks of September 11th, but also years later in such places as Afghanistan, Iraq, the Guantanamo Bay detention center, and elsewhere—was the work of a small number of relatively low-ranking military and civilian officials who went beyond the limits of the …
Putting The Democracy In Democracy And Distrust: The Coherentist Case For Representation Reinforcement, Michael C. Dorf
Putting The Democracy In Democracy And Distrust: The Coherentist Case For Representation Reinforcement, Michael C. Dorf
Michael C. Dorf
Nearly a quarter of a century after its publication, Democracy and Distrust remains the single most perceptive justificatory account of the work of the Warren Court and modern constitutional law more broadly. Yet, the continuing influence of John Hart Ely’s process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe’s "Puzzling Persistence of Process-Based Constitutional Theories" and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with …
Dynamic Incorporation Of Foreign Law , Michael C. Dorf
Dynamic Incorporation Of Foreign Law , Michael C. Dorf
Michael C. Dorf
No abstract provided.
The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf
The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Shared Constitutional Interpretation, Michael C. Dorf, Barry Friedman
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
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 Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf
The Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf
Michael C. Dorf
No abstract provided.
The Heterogeneity Of Rights, Michael C. Dorf
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
Federal Governmental Power: The Voting Rights Act, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf
Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf
Michael C. Dorf
Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold …
“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel
“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel
Michael C. Dorf
In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being …
Instrumental And Non-Instrumental Federalism, Michael C. Dorf
Instrumental And Non-Instrumental Federalism, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Dicta And Article Iii, Michael C. Dorf
The Coherentism Of Democracy And Distrust, Michael C. Dorf
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
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
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
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
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
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
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
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
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 …