Constitutional Law Commons^™

"Revolution" At The Capitol: How Law Hindered The Response To The Events Of January 6, 2021, Jill I. Goldenziel

Maryland Law Review

No abstract provided.

We The People (Of Faith): The Supremacy Of Religious Rights In The Shadow Of A Pandemic, Elizabeth Reiner Platt, Katherine M. Franke, Lilia Hadjiivanova

Faculty Scholarship

Late on a Friday evening in April 2021, over a year into the COVID-19 crisis, the Supreme Court issued a brief opinion that dramatically transformed constitutional law. In the midst of a once-in-a-lifetime global pandemic, the Court ruled in Tandon v. Newsom that state and local governments seeking to curb the spread of the novel coronavirus may not restrict in-person religious gatherings more rigorously than any other type of activity, such as shopping for groceries or working at a warehouse. The opinion was only one in a barrage of cases filed in federal courts across the country — many …

The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand

Faculty Scholarship

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Defining Crime, Delegating Authority – How Different Are Administrative Crimes?, Daniel C. Richman

Faculty Scholarship

As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty – not the abstract “liberty” said to be protected by …

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

The Uncertain Future Of Administrative Law, Jeremy K. Kessler, Charles F. Sabel

Faculty Scholarship

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger

Faculty Scholarship

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …

The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt

Faculty Scholarship

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but …

Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass

Faculty Scholarship

For at least half a century, scholars of the early American Constitution have noted the archival prominence of a doctrine known as the “federal consensus.” This doctrine instructed that Congress had no power to interfere with the institution of slavery in the states where it existed. Despite its ubiquity in the records, our understanding of how and why this doctrine emerged is hazy at best. Working from a conceptual map of America’s founding that features thirteen local governments coalescing into two feuding sections of North and South, commentators have tended to explain the federal consensus either as a vestige of …

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

Checks And Balances In The Criminal Law, Daniel Epps

Scholarship@WashULaw

The separation of powers is considered essential in the criminal law, where liberty and even life are at stake. Yet the reasons for separating criminal powers are surprisingly opaque, and “the separation of powers” is often used to refer to distinct, and sometimes contradictory, concepts.

This Article reexamines the justifications for the separation of powers in criminal law. It asks what is important about separating criminal powers and what values such separation serves. It concludes that in criminal justice, the traditional Madisonian approach of separating powers between functionally differentiated political institutions—legislature, executive, and judiciary—bears no necessary connection to important values …

Propertied Rites, Kellen R. Funk

Faculty Scholarship

This Essay reviews Jack Rakove’s Beyond Belief, Beyond Conscience and Winnifred Fallers Sullivan’s Church State Corporation with an eye towards the complex management of religious property in U.S. constitutional doctrine. Part I summarizes Rakove’s book and highlights its value in the context of recent scholarship on early American legislative theory. Part II critiques Rakove’s turn from description towards advocacy of James Madison’s liberal protestant political theology. Part III summarizes Sullivan’s book as a particularly potent rebuttal to Rakove’s. Part IV takes up Sullivan’s method to consider the most recent crisis of religious property before the Supreme Court, that of government …

Chinese Canons And The Basic Law: Tracing The Interpretative Shifts Of The National People's Congress Standing Committee, Joshua M. Feinzig

Faculty Scholarship

This Article considers the uneasy constitutional relationship between Hong Kong and the People's Republic of China Central Government through the lens of the National People's Congress Standing Committee's interpretations of the Hong Kong Basic Law. These interpretations have constrained and redirected Hong Kong's democratic development, and scholars have appropriately questioned the legitimate extent of the Standing Committee's interpretative authority in light Article 158 and the animating purposes of the Sino-British Joint Declaration Treaty. But the interpretations are less frequently treated as legal texts that both reflect and inform underlying constitutional developments.

This Article therefore evaluates the Standing Committee's normative and …

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

Second Amendment Equilibria, Darrell A. H. Miller

Faculty Scholarship

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although …

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Why A Federal Wealth Tax Is Constitutional, Ari Glogower, David Gamage, Kitty Richards

Articles by Maurer Faculty

The 2020 Democratic presidential primaries brought national attention to a new direction for the tax system: a federal wealth tax for the wealthiest taxpayers. During their campaigns, Senators Elizabeth Warren (D-MA) and Bernie Sanders (I-VT) both introduced proposals to tax the wealth of multimillionaires and billionaires, and to use the revenue for public investments, including in health care and education. These reforms generated broad public support—even among many Republicans—and broadened the conversation over the future of progressive tax reform.

A well-designed, high-end wealth tax can level the playing field in an unequal society and promote shared economic prosperity.

Critics have …

The Architecture Of Judicial Ethics, Charles G. Geyh

Articles by Maurer Faculty

In 1999, Professor Stephen Burbank wrote an article entitled The Architecture of Judicial Independence. It is a foundational piece that gave structure to what was then an understudied field. At the heart of that article is a profound insight: stable and enduring judicial systems are the product of forces in constructive tension. Thus, in the context of judicial administration, Burbank conceptualized judicial independence with reference to judicial accountability, and characterized pressure points in the relationship between them as complementary, not contradictory; and in later work, he made a similar point about the interplay between the law and policy in judicial …

Some Objections To Strict Liability For Constitutional Torts, Michael L. Wells

Georgia Law Review

Qualified immunity protects officials from damages for
constitutional violations unless they have violated “clearly
established” rights. Local governments enjoy no immunity, but
they may not be sued on a vicarious liability theory for
constitutional violations committed by their employees. Critics
of the current regime would overturn these rules in order to
vindicate constitutional rights and deter violations. This
Article argues that across-the-board abolition of these limits on
liability would be unwise as the costs would outweigh the
benefits. In some contexts, however, exceptions may be justified.
Much of the recent controversy surrounding qualified
immunity involves suits in which police officers …

Finding Original Public Meaning, James Macleod

Georgia Law Review

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute’s bar on discrimination “because of sex”—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists’ …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

Freedom Of Thought At The Ethical Frontier Of Law & Science, Marcus Moore

All Faculty Publications

Some of the most compelling contemporary ethical questions surround 21st Century neuroscientific technologies. Among these, neurocognitive intervention technologies allow an unprecedented ability to alter thought. Concerns exist about their impact on individual freedom, behavior and personhood. They could also distort society, eroding core values of dignity, equality, and diversity. Potent laws are needed to anchor regulation in this rising field. The article explores how the long-neglected human right of Freedom of Thought might protect the integrity of the mind at the legal system’s highest level. Sample cases illustrate how it could be given effect ethically and legally to set boundaries …