Category Archives: Constitutional Law

The Excluded Muddle

Jul 20, 2021 Paul HorwitzConstitutional Law

Paul Horwitz

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars.¹ Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label² that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit. Continue reading "The Excluded Muddle"

People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control

Jun 24, 2021 Katie EyerConstitutional Law

Katie Eyer

At the end of 2018, USA Today published a list of “normal” activities that had recently prompted calls to the police when Black people engaged in them. The list, which highlighted a series of viral incidents in which white people had wrongly called the police on Black people engaging in everyday activities, included incidents like police calls over Black people barbecuing at a park, sitting in a Starbucks, and mowing lawns. Many of these incidents rightly generated public outrage—and in some instances material consequences—for those who had wrongly sought police intervention. By presenting a list of the “normal, everyday” activities which resulted in police calls when Black people engaged in them, the story highlighted the role that racism plays in what public conduct is perceived as criminal.

Jamelia Morgan’s Disability’s Fourth Amendment invites us to go further and interrogate the ways in which “normal” itself—and associated understandings of what is “reasonable” policing—produce presumptions of criminality when mapped onto disabled “bodyminds” (a term that Morgan borrows from disability studies scholar Sami Schalk). Morgan argues that by failing to account adequately for disability, Fourth Amendment doctrine under-protects people with disabilities, subjecting them to a greater likelihood of stops, searches, seizures, and excessive force. Most troublingly, Prof. Morgan compellingly makes the case that many of the very indicia used to justify police action (including the use of force) under the Fourth Amendment overlap with physical, mental, and behavioral manifestations of disability. Continue reading "People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control"

Habeas, Hail Mary, And the Hook and Ladder

Jun 7, 2021 Thomas BennettConstitutional Law

Thomas Bennett

Time ticks away. You have one shot downfield. If you don’t score a touchdown, the game’s over. Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play—a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty—requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times?

Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Supreme Court for certiorari. But these prayers for relief, like Hail Marys, most often go unanswered. Second, a defendant can petition a federal district court for a writ of habeas corpus. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts. Continue reading "Habeas, Hail Mary, And the Hook and Ladder"

Securing Essential Work for Low Wage Workers

May 7, 2021 Rebecca ZietlowConstitutional Law

Rebecca Zietlow

The COVID crisis comes at a time of transition and peril for low wage workers, exposing and exacerbating their vulnerability under United States labor and employment law. The crisis also provides an opportunity for reimagining the state’s responsibility towards low wage workers. Even before the pandemic, in today’s gig economy an increasing number of workers lack any certainty about, and control over, their working lives. In Essentializing Labor Before, During, and After the Coronavirus Epidemic, Deepa Das Acevedo uses the COVID crisis to illustrate how the baseline at-will employment rules contribute to the precarity of the lives of low wage workers. Das Acevedo advocates rejecting the at-will doctrine to address that precarity.

In Essentializing Labor, Das Acevedo shows how the debate over who is an essential worker at the height of the COVID crisis revealed the failure of US labor law to protect the interests of low wage workers. Government measures to protect against COVID made it necessary to determine who is an “essential” worker. “Essential” workers such as medical workers, first responders, grocery store employees and food production workers were exempt from stay-at-home restrictions and could therefore keep their jobs even during the worst times of the COVID crisis. Continue reading "Securing Essential Work for Low Wage Workers"

A Democratic Solution to Social Media Election Warfare, and the First Amendment

Mar 18, 2021 Mark KendeConstitutional Law

Mark Kende

During the rise of big tech like Facebook, Twitter, and YouTube, there has been an increase in autocratic governments. Political leaders in Hungary and Poland have used democratic constitutions to curb democracy. They have ignored the European Union’s complaints about their actions. But perhaps the most dangerous development is the information warfare carried out by Russia, China, Iran, and others with the intention of interfering with democratic elections. Some experts argue that Russia’s “organized social media manipulation” was the reason for Trump’s victory over Clinton.¹ These countries used U.S. First Amendment values against the U.S.

Professor David Sloss is authoring a book detailing how “Chinese and Russian cybertroops” accomplish their goals, as well as the weak efforts by the U.S. social media companies to respond. These platforms have profit incentives that conflict with the need to block information warfare or disinformation campaigns. This review briefly examines the newly released first chapter of the book. What makes the book significant is that Sloss proposes a multi-national alliance and registration identification system to deter this cyber-espionage and perhaps slow the corresponding democratic erosion. The solution, however, raises serious First Amendment issues even though it may promote democracy. Continue reading "A Democratic Solution to Social Media Election Warfare, and the First Amendment"

Protecting Free Speech from Itself

Mar 3, 2021 Edward RubinConstitutional Law

Edward Rubin

There has been a long-standing belief that more speech produces more freedom, and that a governmental regime is democratic to the extent that governmental control of speech is minimized. Recent developments have called these beliefs into question, however. Justice Brandeis may have said that sunlight is the best of disinfectants, but Donald Trump has given disinfectants a bad name, and cast doubt as well on their metaphorical referents through his unceasing falsehoods and his flirtation with or embrace of Russian internet disinformation. He is out of office, but his shenanigans are in fact examples of much more extensive dilemma that remains with us today. In a recent article I like lots, Toni Massaro and Helen Norton confront this dilemma and offer possible responses.

The problem, as the authors note, is that speech has been weaponized by a toxic mixture of new technology and extreme partisanship. The internet in particular, as a source of information that people increasingly rely upon, is less a marketplace of ideas and more a means of inducing people to buy into defective reports and harmful attitudes, by overwhelming them with input or misleading them with subliminal messages. Instead of addressing this problem, a conservative Supreme Court has weaponized free speech doctrine by treating government efforts to regulate defective products and harmful substances as an intrusion on the free speech rights of those who sell these products and substances in the actual marketplace. By thus overlooking serious threats to speech and instituting counter-productive protections, the Court has created a serious mismatch between real dangers and existing doctrine. Continue reading "Protecting Free Speech from Itself"

“I have seen the future…” “And it works?”

Jan 20, 2021 Pat GudridgeConstitutional Law

Pat Gudridge

The moment is at hand. No longer self-consciously experimental, computational analysis now comes to constitutional law in an ambitious effort pursued by David Pozen, prominent in the field at Columbia; his Van Halen-like colleague Eric Talley, known especially perhaps for his law and economics theorizing and his corporate and contract law investigations – and Julian Nyarko, newly arrived at Stanford as a practicing computationalist interested first of all in contract law. Their project takes up the question of polarization and its pertinence constitutionally, an issue that has become more prominent in the past few years.

The effort at one level is straightforward. It turns out that all remarks made by members of Congress, on both the House and Senate side, dating from 1873 to 2016, now exist in a collected, computer analyzable form. What might we learn if we read all these speeches? We can’t, of course – too much to know, too much information to acquire and think through, even if we read quickly rather than carefully. Machines read too, assimilating many more documents much faster. But they read their way – sorting words, counting uses, noticing conjoint and disjoint patternings, and the like. We need to know what we know, therefore, when we read machine-reading results. Pozen, Talley, and Nyarko show us how they assembled their mechanism and the decisions they had to make in order to ready their computer for work. These decisions become a sort of pedigree. Continue reading "“I have seen the future…” “And it works?”"

The Two-Body Problem

Dec 16, 2020 Paul HorwitzConstitutional Law

Paul Horwitz

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies. Continue reading "The Two-Body Problem"

Reproductive Health Care Exceptionalism and the Pandemic

Nov 9, 2020 Helen NortonConstitutional Law

Helen Norton

The term “reproductive health care” encompasses safe access to gynecologic and obstetric care, prenatal care, the prevention of sexually transmissible disease, contraception, and abortion. The term “reproductive health care exceptionalism” refers to the ways in which law and medicine frequently single out reproductive health care services, particularly contraception and abortion, for different and disadvantaged treatment. In Essentially Elective: The Law and Ideology of Restricting Abortion During the Covid-19 Pandemic, Jessie Hill builds on her thoughtful and important body of work on reproductive health care exceptionalism—and its impact on women’s lives.

Examples of reproductive health care exceptionalism include the special Due Process Clause rules that the Supreme Court applies to the government’s regulation of abortion. Normally, courts apply strict scrutiny to the government’s restriction of a fundamental right; this requires the government to show that its choice is narrowly tailored to serve a compelling government interest, a burden that the government rarely meets. But while Planned Parenthood of Southeastern Pennsylvania v. Casey purported to reaffirm Roe v. Wade‘s holding that a woman’s decision about whether to have an abortion is a fundamental right protected by the Due Process Clause, the Casey Court nevertheless applied a new, more government-friendly, test to the government’s regulation of abortion. More specifically, Casey announced the “undue burden” test for assessing the government’s restrictions on abortion, a test that is much more forgiving of the government than strict scrutiny—and a test with contours and applications that remain deeply contested, as most recently illustrated by the Court’s fractured opinions in June Medical Services, LLC v. Russo. Continue reading "Reproductive Health Care Exceptionalism and the Pandemic"

To Delegate or Not to Delegate: Celebrating a Scholarly Exchange About Originalism and the Nondelegation Doctrine

Oct 7, 2020 Eli NachmanyConstitutional Law

Eli Nachmany

A riveting originalist debate over the nondelegation doctrine is currently playing out in the legal academy. The nondelegation principle suggests, in part, that “Congress cannot delegate its legislative power to the executive.” In their recent article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley argue that the framers originally understood the Constitution to permit such delegation. In a forthcoming essay in the Yale Law Journal, aptly titled Nondelegation at the Founding, Professor Ilan Wurman takes the opposite position.

As a policy matter, the answer to the question whether Congress can delegate some legislative power to the executive branch could have a profound effect on the way our federal government regulates various aspects of American life. Justice Kagan has warned that a robust application of the doctrine could lead to the conclusion that “most of Government is unconstitutional,” including the promulgation and enforcement of many consequential environmental, labor, and other regulations. Some proponents of the nondelegation doctrine reply that these and other regulations involve difficult policy choices that—in the interest of democratic accountability and the preservation of liberty—Congress should not be able to pass off to the executive branch. Continue reading "To Delegate or Not to Delegate: Celebrating a Scholarly Exchange About Originalism and the Nondelegation Doctrine"