Constitutional Law Commons^™

An Organizational Account Of State Standing, Katherine M. Crocker

Notre Dame Law Review

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

The Endogenous Fourth Amendment: An Empirical Assessment Of How Police Understandings Of Excessive Force Become Constitutional Law, Osagie K. Obasogie, Zachary Newman

Cornell Law Review

If the Fourth Amendment is designed to protect citizens from law enforcement abusing its powers, why are so many unarmed Americans killed? Traditional understandings of the Fourth Amendment suggest that it has an exogenous effect on police use of force, Le., that the Fourth Amendment provides the ground rules for how and when law enforcement can use force that police departments turn into use-of-force policies that ostensibly limit police violence. In this Article, we question whether this exogenous understanding of the Fourth Amendment in relation to excessive force claims is accurate by engaging in an empirical assessment of the use-of-force …

The Private Rights Of Public Governments, Seth Davis

Notre Dame Law Review

This Essay charts the analytical and doctrinal confusion arising from the category of “proprietary” interests in state standing law. This category might be taken literally to include only the ownership of property and interests that stem from it. It might refer to interests that are analogous to those that a private corporation might litigate, or instead to any type of financial injury a state might suffer. Other possibilities would limit “proprietary” interests to those interests recognized under the common law, or only those interests recognized under private law. Perhaps the most that can be said is that “proprietary” interests should …

State Standing And Cooperative Federalism, Ernest A. Young

Notre Dame Law Review

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

Foreword: Some Puzzles Of State Standing, Tara L. Grove

Notre Dame Law Review

When should states have standing? In recent years, there has been an explosion in literature on that question. Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? These …

Reining In State Standing, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

In upholding standing in Massachusetts v. EPA, Justice Stevens said that states “are not normal litigants for the purposes of invoking federal jurisdiction.” While one might agree that the states are not normal litigants, that abnormality might well suggest that states should get standing less easily than private parties.

As a historical matter, states were limited in the kinds of cases they could bring in the federal courts. States typically could not litigate their sovereignty interests (their powers to govern to the exclusion of other governments), nor could they litigate their parens patriae interests (the interests of their citizens) …

Protecting Native Women From Violence: Fostering State-Tribal Relations And The Shortcomings Of The Violence Against Women Act Of 2013, Dayna Olson

UC Law Constitutional Quarterly

Native American women face violence at astronomically high rates compared to any other ethnic group in the United States. These staggering statistics are laregly the result of conflicting criminal jurisdiction between tribal, state, and federal prosecutors. As a result, crimes of intimate partner violence that take place on tribal reservations often go unpunished, leaving these women with little to no recourse. In 2013, President Obama signed the reauthorization of the Violence Against Women Act. This landmark legislation created the Special Domestic Violence Criminal Jurisdiction, which gave Native American tribes the authority to prosecute a narrow set of non-tribal members for …

Quasi-Sovereign Standing, F. Andrew Hessick

Notre Dame Law Review

Judges have concluded that states do not have standing based on their quasi-sovereign interests to sue the United States for not obeying the law. Two different reasons have been given. First, because a state can assert quasi-sovereign interests only in its capacity of representing its residents, a state has standing to press those interests only if it can demonstrate that its residents have suffered an injury in fact. On this view, states do not have general standing to sue the federal government for disobeying the law; they have standing only if they can show that the disobedience injured a resident. …

State Standing And National Injunctions, Bradford Mank, Michael E. Solimine

Notre Dame Law Review

Most of the growing literature on national injunctions makes only passing mention, if at all, of states being plaintiffs or of the appropriateness of state standing and how it might bear on the geographic scope of an injunction. This Essay undertakes to fill that gap in a more extended way. Part I of the Essay addresses the issue of state standing in suits against the federal government, and argues that such standing is well grounded in the traditional parens patriae powers of states and should be permitted to protect the health, welfare, and natural resources of their citizens. That is, …

Standing For Nothing, Robert A. Mikos

Notre Dame Law Review

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such “protective” standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited—that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

State Standing's Uncertain Stakes, Aziz Z. Huq

Notre Dame Law Review

I offer a quite modest contribution to debates on state standing. I do not offer “right answers.” Rather, I posit that it is useful to understand the “stakes” of state standing. By “stakes,” I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting the ability of states to initiate a matter in federal courts. Why, that is, does state standing matter? An inquiry into stakes can usefully proceed stepwise. A first task is to identify the subset of state standing cases that presently elicit division among the Justices. A second task is to articulate …

British Impeachments (1376-1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii

Faculty Publications

Impeachment is a British invention, employed by Parliament beginning in 1376 to resist the general tendency of the monarchy to absolutism and to counter particularly obnoxious royal policies by removing the ministers who implemented them. The invention crossed the Atlantic with the British colonists who would one day rebel against their mother country and create an independent United States of America. During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they recoiled from the severe and occasionally fatal punishments imposed by Parliament, and they wrestled over what conduct should be …

Supermajoritarian Criminal Justice, Aliza Plener Cover

Articles

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms …

British Impeachments (1376 - 1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii

UC Law Constitutional Quarterly

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the Founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior it designated as impeachable. These included: armed rebellion and other overt treasons; common crimes like …

Abandoned Or Unattended? The Outer Limit Of Fourth Amendment Protection For Homeless Persons’ Property, Tim Donaldson

UC Law Constitutional Quarterly

Homelessness in America has become an epidemic problem. Homeless encampments can be found in public areas of almost every major city, and the resulting accumulation of waste, debris, and other items in those areas presents public health and safety concerns. Many cities have responded to those challenges by periodically clearing or cleaning campsites and must determine, often among tons of materials, what may be collected and discarded. This article reviews the constitutional treatment of abandoned property versus unabandoned property. It proposes guidelines for determining when unattended property left in public areas by homeless persons may be considered abandoned and beyond …

Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh

Law Faculty Briefs and Court Documents

The brief argues that the Third District Court of Appeals, in violation of the First Amendment, erred in upholding an injunction that barred defendant from any online postings regarding plaintiff, whether or not those postings were to plaintiff or to third parties.

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

What Florida's Constitution Revision Commission Can Teach And Learn From Those Of Other States, Mary E. Adkins

UF Law Faculty Publications

The framers of Florida's constitution envisioned a Constitutional Revision Commission with complete freedom and independence - but its brainchild has not been able to keep that promise. In light of not only the public frustration with attempts at constitutional reform, but also of the specific problems identified both in structure and in practice of Florida's CRC, this Article suggests some reforms that could help not only Florida but other state constitution commissions or conventions be more effective and more readily accepted by the public.

Traveling While Hispanic: Border Patrol Immigration Investigatory Stops At Tsa Checkpoints And Hispanic Appearance, Pablo Chapablanco

Cornell Law Review

No abstract provided.

Adjudicating Dignity: Judicial Motivations And Justice Kennedy’S Jurisprudence Of Dignity, Allyson C. Yankle, Daniel Tagliarina

UC Law Constitutional Quarterly

Drawing primarily on scholarship concerning legal motivation and the decisionmaking of Supreme Court median justices, we use Justice Kennedy’s opinions as a case study to examine how institutional position on the Supreme Court allows median justices to look beyond policy goals and consider legal goals and motivations in their decision-making. We argue that Kennedy’s unique position on the Court as the median justice allows him to pursue legal considerations, including his seemingly idiosyncratic conception of dignity. Kennedy provides an example of how median justices can use their position to not only pursue policy and political outcomes, but also legal considerations …