U.S. Constitutional Law: Interpretation & Judicial Review eJournal最新文献

{"title":"Rights in Search of Protection","authors":"J. Weinrib","doi":"10.1093/ojls/gqaa015","DOIUrl":"https://doi.org/10.1093/ojls/gqaa015","url":null,"abstract":"In Where Our Protection Lies, Dimitrios Kyritsis develops an innovative constitutional framework that aims to reconcile two commitments: democratic governance and the protection of fundamental rights. This review article argues that the reconciliation fails to provide fundamental rights with meaningful protection. On the one hand, the framework’s moral resources hollow out the duties that rights impose on legislatures. Instead of protecting persons from the abusive exercise of legislative power, the framework narrows what constitutes abuse. On the other, the framework’s institutional resources leave persons without the means of vindicating their rights. What Kyritsis terms protection consists in the ongoing susceptibility to the violation of one’s fundamental rights.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127635590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Cure for Lochner-Phobia","authors":"Aaron Gordon","doi":"10.2139/SSRN.3406809","DOIUrl":"https://doi.org/10.2139/SSRN.3406809","url":null,"abstract":"Lochner v. New York is widely considered one of the worst Supreme Court decisions in American history. The basis for much of this vitriol is a widespread belief that economic liberties of the sort protected in Lochner lack any basis in the Constitution, a view espoused by a host of authorities across the ideological spectrum — including Robert Bork, Ronald Dworkin, Akhil Amar, Clarence Thomas, Antonin Scalia, former Chief Justice William Rehnquist, and current Chief Justice John Roberts. I, however, dissent. I argue in this Paper that the result in Lochner, as well as the pre-New-Deal Court’s protection for liberty of contract and related economic rights in general, are based on defensible interpretations of the Constitution. In reaching this conclusion, I adhere to the philosophy of originalism, or the view that constitutional provisions have the meaning they had when they were adopted. I contribute to existing literature by attempting to assemble the most comprehensive and detailed originalist analysis possible of Lochner-era constitutional economic liberties, including some sources that, so far as I am aware, have been overlooked in the prior scholarship addressing this question; as well as by more fully exploring the contours of constitutional economic rights, by which I mean the traditional exceptions to these liberties and the standard of review courts should use in enforcing them. \u0000 \u0000In this Paper, I begin with a brief discussion of the basis in constitutional text for protecting economic liberty of the sort courts enforced during the Lochner era. I then present a thorough originalist argument in favor of Lochner-era constitutional economic liberties based on evidence from the periods before and shortly after the Fourteenth Amendment’s adoption, respectively. Next, I identify several historically-justifiable exceptions to, or bases for restricting, these freedoms, formulating a judicial test for adjudicating economic-substantive-due-process challenges to legislation and applying the proposed test to the facts of a real case, so as to illustrate how the standard I devise would function in practice. I then mitigate the more radical implications of my arguments by suggesting some ways in which courts might revitalize more modest forms of economic liberty so as to minimize disruption to settled jurisprudence and give due deference to democratic policymaking. Finally, I conclude with discussion of the public-policy issues raised by my arguments.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124450871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judge Damon Keith: The Judicial Antidote to Judge Julius Hoffman Challenging Claims of Unilateral Executive Authority","authors":"Ellen Yaroshefsky","doi":"10.2139/ssrn.3380482","DOIUrl":"https://doi.org/10.2139/ssrn.3380482","url":null,"abstract":"From some of the highly-publicized trials of the 1960's - namely the trials of the Chicago Eight, Panther Twenty-One, Weathermen - we can draw indispensable lessons about the role of the judges in upholding and promoting a fair justice system. The contract to Judge Julius Hoffman's notorious injudicious conduct in the Chicago 8 case is the courageous, thoughtful Judge Damon Keith, in the less publicized White Panther case in Detroit in the early 1970's. Judge Keith's overriding sense of fairness, exemplified the best of judicial independence in considering President Nixon's claims of unilateral executive authority in US v. Ayers and US v. US District Court. Judge Keith's exemplary judicial conduct is an embrace of judicial independence that provides inspiration in current times.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130923808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Nationwide Injunctions’ Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Constitutional Structure","authors":"R. Cass","doi":"10.2139/SSRN.3231456","DOIUrl":"https://doi.org/10.2139/SSRN.3231456","url":null,"abstract":"Nationwide injunctions — injunctions extending beyond the immediate parties to litigation and beyond the geographic bounds of the issuing court’s mandate — increasingly are used by lower federal courts to stop, alter, or condition the operation of national government policies. This typically occurs at the request of politically-invested officials and groups and targets politically consequential initiatives. While a small number of suits present matters and settings for which nationwide injunctive relief is appropriate, federal district court judges have issued nationwide injunctions in situations far beyond that set. Expanded use of nationwide injunctions — especially broad injunctions against the United States — undermines rule-of-law values, threatens the operation of courts as impartial arbiters of disputes over legal rights, erodes the Constitution’s careful separation of functions among the branches of government, and is at odds with basic aspects of the federal judiciary’s design, including its geographic divisions. Understanding the limited place for nationwide injunctions — where they are appropriate and why, along with what distinguishes the cases where they are not appropriate or even constitutionally permissible — is critical to regulating a practice that portends significant damage to law-making and law-implementing structures and to the carefully cabined role of the federal courts.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123340212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Review in an Age of Hyper-Polarization and Alternative Facts","authors":"David A. Dana, M. Barsa","doi":"10.2139/SSRN.3123331","DOIUrl":"https://doi.org/10.2139/SSRN.3123331","url":null,"abstract":"Hyper-polarization and tendency to embrace “alternative facts” on just one end of the political spectrum has implications for judicial review of administrative agencies. A principal rationale for deferential judicial review is that agencies are technocratic experts. Courts, as non-experts, defer to agencies in part because they trust the integrity of agencies’ technical analyses and judgment. But in an age of hyper-polarization – and at minimum a partial rejection of the scientific method in favor of alternative facts – deference based on agencies’ technical competence is less justified. Instead, courts cannot as readily assume that agencies’ technical, expert, “factual” analyses and conclusions are well-supported. Deference based on technocratic expertise is particularly questionable when an agency shifts its position after an election by rejecting the previous administration’s policy and adopting a dramatically different one. Such policy swings typically occur around focal points of partisan hyper-polarization – it is with respect to such focal point issues that the assumption of technocratic competence is least tenable. \u0000Building on this insight about the effects of hyper-polarization, we argue for a re-assessment of how courts review administrative agency changes in policy. While some precedent suggests that agencies face an especially “hard look” when they deviate from past practices or approaches, the United States Supreme Court’s decision in FCC v. Fox Television Stations, Inc. is generally read as establishing the same level of deferential review when an agency shifts course as when it stays the course or addresses an issue for the very first time. And, as a normative matter, scholars have argued for deferential review regarding agency shifts so as to avoid agency “ossification” and bureaucratic inertia – to give effect to the values of the party that just won power because, in a democracy, elections must matter. \u0000Nonetheless, we believe that Fox need not – and should not – be read to preclude courts from adopting the kind of judicial review our age of hyper-polarization justifies. In particular, Fox supports courts holding agencies to a high standard in explaining why the facts that a previous administration relied upon are no longer true or relevant or no longer weigh heavily in favor of conclusions reached by the previous administration. Notably, nothing in Fox prevents courts from either seriously questioning an agency about what new facts support its recent policy change, or from interrogating the basis for those newly claimed facts. A broad but fair reading of Fox also supports courts calling on agencies to meaningfully explain how their shifts will affect reliance interests, broadly understood, and how the agencies sought, if they did, to meaningfully take account of those reliance interests. One of our goals here is to rebut the claim recently made by Trump’s EPA that current case law allows an agency almost unlimited discretion t","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124840736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Elevating Competition: Classical Political Economy in Justice Peckham’s Jurisprudence","authors":"N. Giocoli","doi":"10.2139/SSRN.2928198","DOIUrl":"https://doi.org/10.2139/SSRN.2928198","url":null,"abstract":"This paper deals with the famous Lochner v. New York (1905) decision from the perspective of the history of economic thought. In »Lochner« the Supreme Court affirmed freedom of contract as a substantive constitutional right. It is argued that, in writing for the majority, Justice Rufus W. Peckham was heavily influenced by classical political economy. Not, however, in the trivial sense of endorsing pure laissez faire, but in the deeper sense of applying Adam Smith’s recipe for building a “system of natural liberty”, viz., a social order founded on justice, private property, and free competition. My interpretation is validated by looking at the economic content of Peckham’s jurisprudence as a judge in the New York Court of Appeals.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133317530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt","authors":"K. Greasley","doi":"10.1111/1468-2230.12256","DOIUrl":"https://doi.org/10.1111/1468-2230.12256","url":null,"abstract":"In Whole Woman's Health v Hellerstedt the Supreme Court of the United States passed down its most important decision on abortion for just under a decade. By a majority of 5-3, the Court ruled that two provisions in a Texas law regulating abortion on grounds of women's health were constitutionally invalid, placing a ‘substantial obstacle’ in the way of women seeking to exercise their right to abortion. This comment delineates the key ways in which the Court's application of the standard of constitutional review under Planned Parenthood v Casey (1992) to the Texas provisions marks a landmark development for the protection of the constitutional right to abortion established in Roe v Wade, not the least by making clear that state abortion regulations which cite ‘women's health’ justifications should not pass constitutional review where those justifications lack a credible factual basis.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133135748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath?","authors":"D. Weisberg","doi":"10.2139/SSRN.2888201","DOIUrl":"https://doi.org/10.2139/SSRN.2888201","url":null,"abstract":"The Foreign Emoluments Clause (Article I, Section 9 of the Constitution) provides that those holding federal office shall not accept “any present, emolument, office, or title, of any kind whatever, from any…foreign state.” It has been argued, most prominently and forcefully by Prof. Laurence H. Tribe, that a Pres. Trump, because of his far-flung business interests, would be in violation of the Clause merely by virtue of his taking the oath. This conclusion is incorrect, because it is bottomed on a mistaken understanding of the meaning of the word “emolument”. The income that would continue to flow to a Pres. Trump after he takes his oath of office will not arise from the office of, or his employment as, president, even if that income is from a foreign state. Therefore, that income cannot reasonably be said to be an emolument. Moreover, if one were to accept Prof. Tribe’s mistaken understanding of “emolument,” it would follow that Pres. Obama, since his own oath-taking, has been continually in violation of the Presidential Compensation Clause (Article II, Section 1).","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125688567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Three Supreme Court 'Failures' and a Story of Supreme Court Success","authors":"C. Lain","doi":"10.31228/osf.io/5csgw","DOIUrl":"https://doi.org/10.31228/osf.io/5csgw","url":null,"abstract":"Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures — cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases — Plessy and Buck — the Court’s ruling reflected the progressive view at the time, and in the third — Korematsu — the extralegal context of the case was strong enough to draw the support of Justices Black and Douglas, two of the Court’s most staunch civil liberties defenders. Plessy, Buck, and Korematsu are potent reminders of how historical context can constrain the Supreme Court’s proclivity to protect, limiting what the Court can realistically do. But this is not to say that an overinflated view of the Court’s protective capacity is all bad. However historically inaccurate, the Supreme Court’s image as a countermajoritarian hero also has a curious upside, setting in motion forces that can, over time, enable and inspire the Court’s protection. In the end, our expectations of the Supreme Court as a countermajoritarian savior both give rise to a rhetoric of failure and pave the way for future protection. What is vastly underappreciated is the connection between the two — how within the rhetoric of failure lies a larger, and largely untold, story of Supreme Court success.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"282 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114841727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federal Banks and Federal Jurisdiction in the Progressive Era: A Case Study of Smith v. K.C. Title & Trust Co.","authors":"Larry W. Yackle","doi":"10.17161/1808.20253","DOIUrl":"https://doi.org/10.17161/1808.20253","url":null,"abstract":"This is a case study of the Supreme Court’s classic decision in Smith v. K.C. Title & Trust Co. A stockholder challenged the constitutionality of the Farm Loan Act of 1916, which authorized federal banks to issue tax-exempt bonds to raise funds for loans to farmers. The case is best known for its holding that a federal court could entertain the suit because it arose “under the Constitution” and for Justice Holmes’ argument, in dissent, that federal jurisdiction was not established because state law created the “cause of action.” This study is the first to go beyond the jurisdictional issue in Smith. This old case provides a snapshot of a time in American history when both political parties cooperated in the creation of public institutions to foster credit in a vital sector of the economy. Private companies asked the courts to protect their businesses in the name of the Constitution. The courts fashioned a framework for entertaining the challenge. And the Supreme Court easily validated the economic policy forged by Congress. Smith was a classic test case. The real interests backing the shareholder’s action were private mortgage lenders anxious that federal banks would drive them out of business. Some of the greatest lawyers of the day participated, including Charles Evans Hughes (later to be named Chief Justice). This article describes the 1916 Act and the conditions that gave rise to it, explores the development of the test case, and critiques the modern Court’s understanding of the jurisdictional question.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123836008","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}