Constitutional Law Commons^™

The Dimension Of The Supreme Court, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.

In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is …

Eldred V. Ashcroft: Challenging The Constitutionality Of The Copyright Term Extension Act, Justice J. Rillera

Vanderbilt Journal of Entertainment & Technology Law

This Note explores opposing arguments on the constitutionality of the CTEA under the Copyright Clause, which gives Congress the power "[t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to the irrespective Writings and Discoveries." Part I of this Note analyzes whether Congress violated the "limited Times" restriction by extending the terms of existing copyrights. Part II examines whether the CTEA promotes the "Progress of Science' ' Finally, Part Ill highlights questions the U.S. Supreme Court must resolve to maintain the balance between the rights of the …

Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …

Time For A New Approach? Federalism And Foreign Affairs After "Crosby V. National Foreign Trade Council", James J. Pascoe

Vanderbilt Journal of Transnational Law

On June 19, 2000, in Crosby v. National Foreign Trade Council--a much-anticipated decision involving the intersection of federalism and foreign relations--the U.S. Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business in Burma. Crosby represents the Court's first consideration not only of local selective purchasing laws but, more importantly, its first consideration of the sort of subnational sanctions first developed by state and local governments during the anti-apartheid campaign of the 1980's. Thus, Crosby may pose an obstacle to human rights activism by local governments using economic sanctions to punish perceived human-rights offenders.

Because the …

Unratified Treaties And Other Unperfected Acts In International Law: Constitutional Functions, W. Michael Reisman

Vanderbilt Journal of Transnational Law

In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem …

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.

Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.

The Law And Large Numbers, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Can mathematics be used to inform legal analysis? This is not a ridiculous question. Law has certain superficial resem­blances to mathematics. One might view the Constitution and various statutes as providing "axioms" for a deductive legal sys­tem. From these axioms judges deduce "theorems" consisting of interpretation of these axioms in certain situations. Often these theorems are built on previously "proven" theorems, i.e. earlier decisions of the court. Of course some of the axioms might change, and occasionally a theorem that was once true becomes false; the former is a common feature of mathematics, the latter, though theoretically not possible in …

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

Constitutional Issues Raised By States' Exclusion Of Fertility Drugs From Medicaid Coverage In Light Of Mandated Coverage Of Viagra, Erin L. Connolly

Vanderbilt Law Review

On July 2, 1998, officials at the Health Care Financing Administration ("HCFA"), the federal agency responsible for administering the Medicaid program,' mandated that state Medicaid pro- grams provide coverage for the impotency drug Viagra. The HCFA's announcement has proven very controversial, encountering resistance from many states who view the mandate as financially impairing their ability to provide other Medicaid services. Mandated Medicaid coverage of Viagra is also curious, considering that the Medicaid statute specifically permits states to exclude fertility drugs, a category of drugs into which Viagra falls, from coverage under state Medicaid programs. Moreover, most states do in fact …

Accommodation And Equal Liberty, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …

Ten Years Of Basic Law Amendments: Developing A Constitutional Model Of German Unification, Mathew W. Pile

Vanderbilt Journal of Transnational Law

On October 3, 1990, West and East Germany officially united. Although several unification methods were possible, the unification occurred by East Germany acceding to the West German Constitution--the Basic Law--through a series of treaties. This "treaty route" to unification necessarily required amendments to the Basic Law.

The primary unification instrument, the Treaty on the Establishment of German Unity, detailed the Basic Law amendments that were immediately essential to effectuating unification. The treaty, however, also contemplated additional Basic Law amendments arising from the consequences of unification. In fact, in the ten years following German unification, the German legislature passed six Basic …

A Case Of Unconstitutional Immigration: The Importation Of England's National Curriculum To The United States, Jaime S. Boutwell

Vanderbilt Journal of Transnational Law

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State …

The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our …

Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.' Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, …

Disentangling Deregulatory Takings, Jim Rossi, Susan G. Rose-Ackerman

Vanderbilt Law School Faculty Publications

Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them …

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …

Government Of The Good, Abner S. Greene

Vanderbilt Law Review

Government "speaks" both directly through its own pronouncements and indirectly through funding private speech. Many scholars of both political theory and constitutional law have argued that government should not use its persuasive powers to promote contested notions of the good life. Whether the issue is providing information about childbirth without also providing information about abortion or insisting on adherence to decency standards when awarding cultural grants, scholars generally have maintained that government should avoid taking sides.

In this Article, Professor Greene supports the contrary position, advocating a vigorous role for government speech even in areas of great social contest. Government …

Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer

Vanderbilt Law Review

A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law Review

In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts,' must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state's. system of governance. But rarely does it attempt to under- stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ.

This is unfortunate. Understood through …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …

Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier

Vanderbilt Law School Faculty Publications

It is a long-established principle that presidential impeachment is an appropriate remedy only for "high Crimes and Misdemeanors" of a public nature (with the possible exception of private crimes so heinous that the President "cannot be permitted to remain at large"). The crux of this Essay's argument is that the President's affair with Monica Lewinsky was a private matter that was not rendered "public" simply because Mr. Clinton lied about it. With its vote against removing the President, the Senate seemed to agree.

The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George

Vanderbilt Law School Faculty Publications

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article …

Liberty Of Expression In Ireland And The Need For A Constitutional Law Of Defamation, Sarah Frazier

Vanderbilt Journal of Transnational Law

Judicial and constitutional conservatism have allowed Irish defamation law to remain remarkably close to its English common law origins. But the common law of defamation was not designed for a modem democracy with a free press, and Ireland's libel laws have a profound effect upon freedom of expression. If Ireland is to be a modern democracy, as its constitution asserts that it is, and the European Convention on Human Rights demands, it must protect a core area of free expression in order to allow the press (without the fear of repercussion) to keep the public informed about matters of concern. …

Running From The Law: Should Bounty Hunters Be Considered State Actors And Thus Subject To Constitutional Restraints?, Andrew D. Patrick

Vanderbilt Law Review

The issue of bounty hunter misconduct catapulted into the public spotlight in September, 1997, when a team of commando-like criminals who claimed to be searching for a bail-jumper gunned down a Phoenix couple in their own bedroom. Though the perpetrators' story was later uncovered as a hoax, and though the men would likely have been convicted of second-degree murder regardless of their profession,s their case and others like it aroused impassioned demands for bounty hunter regulation and, more radically, constitutional restraints on the bail bond industry.

Constitutional protections are applicable only against the government and "state actors." Bounty hunters have …

The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan

Vanderbilt Law Review

Recent decisions have signaled a subtle shift away from the Supreme Court's categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court's recent use of the implied theories …

Lest We Forget: Buchanan V. Warley And Constitutional Jurisprudence Of The "Progressive Era", Richard A. Epstein

Vanderbilt Law Review

The two principal papers in this collection are devoted to an analysis of one of the Supreme Court's landmark decisions of the Progressive era, Buchanan v. Warley.' Both David Bernstein and Michael Klarman reveal ambitions that go beyond a single case, as each discusses in detail a large part of the Progressive era jurisprudence on race relations that set the stage for Buchanan v. Warley. A short introduction is hardly the place to quibble with these papers on points of detail. But it is the place to raise one neglected theme that requires fresh emphasis. The constitutional jurisprudence that led …

Mandating English Proficiency For College Instructors: States' Responses To "The Ta Problem", Kenneth King

Vanderbilt Journal of Transnational Law

This Note examines the background, provisions, effects, and constitutionality of state legislation mandating English proficiency assessment for college instructors. Such legislation responds to complaints about the comprehensibility of international instructors--particularly teaching assistants--at U.S. colleges and universities. U.S. universities employ large numbers of international instructors in scientific, technical, and business fields. Such employment is only one aspect of a broader U.S. importation of scientific and technical talent. This Note first considers the background and legitimacy of complaints about international instructors, and then examines the background and details of specific state provisions. It discusses the statutes' effects and particular concerns they raise, …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid B. Wuerth

Vanderbilt Journal of Transnational Law

We will never face Germany's specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through …