Law Commons^™

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Faculty Scholarship

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament – and to rectify it – is to pay more attention to the role that organized wealth plays in our system of checks and balances.

This Article shows that the increasing concentration …

What The New Deal Settled, Jamal Greene

Faculty Scholarship

Not since George H.W. Bush banned it from the menu of Air Force One did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA"). Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision – that's eleven more appearances than …

The Last Plank: Rethinking Public And Private Power To Advance Fair Housing, Olatunde C.A. Johnson

Faculty Scholarship

The persistence of housing discrimination more than forty years after the passage of the federal Fair Housing Act (FHA) of 1968 is among the most intractable civil rights puzzle. For the most part, this puzzle is not doctrinal: the Supreme Court has interpreted the FHA only a handful of times over the last two decades – a marked contrast to frequent doctrinal contestations over the statutory scope and constitutionality of federal laws governing employment discrimination and voting rights. Instead, the central puzzle is the inefficacy of the FHA's enforcement regime given that, in formal terms, the regime is the strongest …

Common Sense About Original And Subsequent Understanding Of The Religion Clauses, Kent Greenawalt

Faculty Scholarship

This Essay is mainly about the Establishment Clause, but it covers analogous questions about free exercise as well. I try to untangle the threads of various controversies, concentrating primarily on what seems fairly resolvable on examination, while also noting uncertainties that do not yield to easy analysis. I ask how constitutional language should have been and should be interpreted, adopting a strategy that gives weight to ordinary meaning and to the general sense of why that language was adopted. I do not eschew reference to legislative history; however for our purposes in this Essay, legislative history turns out to be …

What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault

Faculty Scholarship

My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …