Monday, November 14, 2022
Over the past several years state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations. In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs and flags, California has moved much farther, prohibiting HOAs from unreasonably limiting accessory dwelling units and overriding any private CCR that would inhibit the construction of 100% affordable housing of any density.
These overrides present serious legal questions because CCRs are property and contract rights that may be protected by the Constitution’s Takings and Contract clauses. Overrides have not resulted in much published litigation in the past, but California’s new wave of aggressive CCR overrides may change that. While the Contract Clause argument is exceptionally weak, homeowners who are disabled from enforcing a servitude benefitting their property due to a legislative override have a viable argument that the override interferes with their reasonable expectations regarding the use of their property, and therefore constitutes an unconstitutional taking. On balance, however, I argue that most CCR overrides will survive a takings challenge because the enforceability of CCRs has long been subject to alteration or even termination by courts or legislatures on public policy grounds, so a homeowner would reasonably expect a CCR to be unenforceable if it conflicts with public policy as determined by the legislature. Nevertheless, the current Supreme Court has been very aggressive in recent takings cases so legislatures will have to be careful in crafting overrides to ensure they satisfy the Court’s increasingly stringent takings standards.
Michael L. Smith (Idaho), Originalism, Common Good Constitutionalism, and Transparency, Harvard J. L. and Public Policy (forthcoming):
A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about the Constitution means. Common good constitutionalism’s reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation that tends to match the desires of the interpreter. At the implementation stage, however, those who implement common good constitutionalism do so in a transparent manner—reading the Constitution in line with their readily expressed moral and political inclinations. Originalism, on the other hand, is vulnerable to disingenuous interpreters who use originalism as a smokescreen to achieve political ends in the guise of neutrality. This casts doubts on originalist attempts to use common good constitutionalism as an opportunity to sell their theory to nonoriginalists.
Friday, November 4, 2022
Michael Foran (Glasgow), Rights, Common Good, and the Separation of Powers, The Modern L. Rev.:
Common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This raises important questions relating to the separation of powers and fundamental rights protection. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework. It will argue that rights and the common good are co-constitutive: a genuinely common good will ensure the protection of fundamental rights and genuinely fundamental rights will help constitute and further the common good. With this in mind, a conception of the separation of powers will be advanced wherein different organs of state act collaboratively to ensure both that fundamental rights are protected and that the state can pursue goals which help to further the common good.
Thursday, November 3, 2022
Mark A. Lemley (Stanford), Red Courts, Blue Courts:
The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.
This is a recent phenomenon; it was much less true even a decade ago.
It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.
Jonathan David Shaub, Interbranch Equity, U. Penn. J. Const. L. (2023):
In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. And this central contention that interbranch suits are exceptional, even when ultimately rejected, has largely succeeded in preventing the judiciary from finally resolving the merits of these interbranch cases before they become moot.
This Article rejects the interbranch exceptionalism that obscures most discussions of these cases and asserts that the judiciary should address—and resolve—interbranch cases on the merits under its equity jurisdiction. It shows that the executive branch has not historically followed the justiciability positions it now asserts, but in fact accepted and advocated for judicial intervention in the past. As the executive branch has asserted more robust and exclusive constitutional authority vis-à-vis Congress, however, it has also strategically adopted justiciability arguments to prevent judicial resolution of interbranch disputes. The executive branch is better positioned to engage in constitutional self-help, and these justiciability arguments enable it to retain its ex ante constitutional advantage in interbranch disputes. A close analysis of each of these doctrinal justiciability arguments demonstrates that interbranch cases are not exceptional, however. And well-established traditions of equity—which parallel justiciability inquiries related to standing and the political question doctrine—establish the appropriate case-by-case inquiry into the judicial role in an interbranch case. The judicial power extends to all cases in equity arising under the Constitution, including interbranch cases. Courts should not shirk from that responsibility. When appropriate under traditional equitable principles, courts should decide interbranch cases in equity on the merits. Shirking that duty is not a passive virtue but a decision to allow the separation of powers to be determined by constitutional self-help.
Diego Zambrano, Mariah Mastrodimos, and Sergio Valente (Stanford), The Full Faith and Credit Clause and the Puzzle of Abortion Laws:
Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.
Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.
In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.
In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.
Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.
John Fabian Witt (Yale), Weaponized from the beginning:
Standard accounts of the modern First Amendment attribute its origins to a moment of hopeful discovery of the value of free speech for democratic self-government. But the reverse is also true. The modern law of speech arose simultaneous with the World War One-era realization that unregulated communication in mass society also meant propaganda, lies, and the distortion of public opinion. Key figures in the first generation of modern free speech thus treated speech freedoms as necessary but radically insufficient in the production of democratic public opinion. Intermediary institutions, they believed, shaped information flows and helped produce public opinion. Some, like Walter Lippmann, turned to the administrative state. Others, like Roger Baldwin, championed labor organizations and industrial democracy. A century later, our crisis arises in part out of attacks on the administrative state and the collapse of labor unions, which have undermined the very institutions that prescient observers a century ago believed crucial for managing distortion in the democratic public sphere.
Matthew Patrick Shaw (Vanderbilt), The Public Right to Education, Chicago L. Rev.:
Public education is “the most important function of state and local government” and yet not a “fundamental right or liberty.” This Article engages one of constitutional law’s most intractable problems by introducing “the public right to education” as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process–protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of myriad judicial competency concerns and consistent with the Court’s recent call to reimagine a “twenty-first century” due process, it reintroduces the “public right” to understand how schoolchildren might appeal to substantive due process to protect their rights to state-created interests. This ambitious yet modest approach covers securing schoolchildren’s rights to both discrete education tangibles and the integral educational opportunity that the states have assumed the affirmative duty to provide. This approach also has promise for improving individual rights to quality public schooling.
Wednesday, November 2, 2022
Cristina Rodriguez (Yale), Regime Change, 135 Harv. L. Rev. 1:
In this Foreword, I take October Term 2020 — a Term of transition — as an occasion to explore both the processes and the promise of what I will call regime change, or the replacement within the executive branch of one set of constitutional, interpretive, philosophical, and policy commitments with another. Given the occasion, I focus on the role of law, legal argument, and the courts in enabling or thwarting regime change and the democratic evolution it represents. Indeed, our current political transition confronts us with a central tension of our legal order, between a judicial and legal culture that valorizes stability and custom using language and concepts that sound in rule of law, and the democratic imperative that our institutions help effectuate rather than impede the political will reflected in election results.
My basic claim will be that we ought not rush to treat disruption and change as shocks or aberrations that must be rigorously explained. Shifts in legal argument should not be met with skepticism, and they often should be credited as legitimate reinterpretations of law that, in turn, will help give rise to a new political regime. More generally, we should regard rapid evolution in legal interpretation and corresponding policy development as things to be valued, enabled, and pursued. Valuing and pursuing these forms of change are justified, ultimately, because they help to sustain a connection between government and democratic politics. This connection should lead us to identify and then think twice about legal doctrines, institutional features, and modes of argument that slow transitions and transformations down, either intentionally or in service of objectives laudable on their face. We should be wary of the turn to legalisms that purport to advance the rule of law but that in fact inhibit the evolution of our political order. Moments of transition, such as the one through which we are living, can help to reveal how the concept of the rule of law forms part of an agonistic struggle perpetuated not just by courts, but also by political actors. The concept provides a ready-made vocabulary, well rooted in our legal culture, that serves important values but that can also be employed to stifle democratic development.
Thursday, August 19, 2021
You gotta check out Chip Lupu and Bob Tuttle's outstanding piece on Fulton and the future of free exercise, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, forthcoming in the American Constitution Society Supreme Court Review (OT19 Term's here). In addition to reviewing Fulton and examining the opinions (you'll especially want to check out their critique of Justice Alito's opinion), Lupu and Tuttle integrate the Court's COVID cases into the trend line and argue that
[t]hese moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites.
Thursday, August 12, 2021
Check out Prof. Barry Sullivan's (Loyola Chicago) outstanding piece on Office of Legal Counsel reforms, forthcoming in the Notre Dame Journal of Law, Ethics, and Public Policy. Here's the abstract:
First, this Article situates the Office of Legal Counsel (“OLC”) within the context of a political system in which the executive has grown in power far beyond anything that the founders could have foreseen. As the chief legal advisor to the executive branch, OLC performs a critically important function in protecting our constitutional system and ensuring adherence to the rule of law, but OLC makes no final determinations on behalf of the United States and is subject to the supervision of the Attorney General. Second, the Article reviews the recent recommendations of the American Constitution Society concerning possible reforms of OLC. Among other things, those recommendations include a systematic review of existing opinions and greater transparency going forward. This Article generally concurs in those recommendations but also suggests the possibility of additional reforms such as a reduction in the number of political appointees in OLC and a focus on recruiting more experienced lawyers to fill its ranks. Third, and most important, the Article reviews the relevant case law and evaluates the possibility of a more fundamental reform, namely, giving a greater degree of independence to OLC by providing the Assistant Attorney General for OLC with a fixed term coterminous with that of the President. The Article concludes that such a reform is legally possible and worthy of serious consideration, whether as a matter of legislative enactment or administrative regulation.
Thursday, May 7, 2020
Check out ConLawProf Blog's own Prof. Ruthann Robson's (CUNY) outstanding and timely piece, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, in the U. Akron ConLawNOW Symposium on Pandemics and the Constitution.
Robson argues for positive rights to health and life in the current crisis--"a Constitution that protects our survival"--and not just the negative rights under existing doctrine. (But she also notes that the Administration's mis-handling provides plenty of fodder even for negative rights claims.)
Thursday, April 23, 2020
Check out Prof. Barry Sullivan's (Loyola Chicago) outstanding and wide ranging Democratic Conditions, part of the Loyola Law Review symposium on democracy. Sullivan starts with the increasing alienation of non-elites from elite-run government and a survey of the "disconnect between the rhetoric of constitutional democracy and its reality." He moves to a comparative study of democracy and an exploration of constitutional democracy.
Sullivan then focuses on three ways our current system frustrates constitutional democacy--our lack of understanding of the anti-democratic features of our system, our historical preference for defining our political community in exclusionary terms, and justifiable lack of public confidence in our electoral system--and what to do about it.
Thursday, January 2, 2020
In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal
centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
The article elaborates on the rationales for each section. The entire proposed amendment reads:
The Equality Amendment
Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and
Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and
Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;
Therefore be it enacted that—
Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.
Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.
Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.
Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.
This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.
pictured: Professors Crenshaw (left) & MacKinnon (right)
January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)
Monday, August 19, 2019
The 1619 Project is a unique and accessible look at slavery in the United States — starting in 1619 — and its aftermath.
The muli-faceted project, developed and curated by Nikole Hannah-Jones, appeared as the Sunday New York Times magazine (download here) and is also available as an interactive magazine website. Moreover, the Pulitzer Center’s education team has created curricula from over 30 visual and written pieces from historians, journalists, playwrights, poets, authors, and artists from the project, and although primarily aimed at secondary education, it nevertheless contains a wealth of ideas that could be useful in law school classrooms and scholarship.
Not suprisingly, the law runs throughout the pieces in the Project. There is an incredible section profiling Howard University School of Law students with their families and ancestors.
Check it out: The American Constitution Society is seeking paper proposals for its Junior Scholars Public Law Workshop at the 2020 AALS. The deadline is October 18, 2019. Click the link below for more specifics.
Here's the call:
To further its mission of promoting the vitality of the U.S. Constitution and the fundamental values it expresses — individual rights and liberties, genuine equality, access to justice, democracy and the rule of law — ACS is pleased to announce a call for papers for a workshop on public law to be held on Friday, January 3, 2020, in connection with the 2020 AALS Annual Meeting in Washington, D.C. A committee composed of members of ACS’s Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler, among others. Papers can be in any field related to public law, including but not limited to: constitutional law, administrative law, legislation, antidiscrimination law, criminal law, election law, environmental law, family law, federal courts, financial regulation, health law, public international law, social welfare law, and workplace law.
Wednesday, August 14, 2019
Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).
Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.
Here's from Volokh:
In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.
A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.
[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.
Thursday, August 8, 2019
The Barry University School of Law American Constitution Society Student Chapter and Law Review and the Texas A&M University School of Law just issued a Call For Papers for their 2020 Constitutional Law Scholars Forum.
The Forum is on Friday, February 28, 2020, in Orlando. The proposal deadline is December 1, 2019.
Thursday, May 23, 2019
As anticipated, the Department of Justice has filed a superseding indictment against WikiLeaks founder, Julian Assange.
The 18 count indictment charges 17 violations of the Espionage Act, 18 U.S.C. §793, as well as one count of conspiracy to commit computer intrusion. The factual recitations revolve around Chelsea Manning occurring in 2010; other highly publicized allegations involving President Trump and Hillary Clinton do not make an appearance (and their names are not mentioned in the indictment).
The charges of unauthorized obtaining and receiving of "National Defense Information" (counts 1-8) and unauthorized disclosure of that same national defense information (counts 9-17) raise First Amendment issues.
The argument is — quite simply — that Assange has done nothing different than other journalists who have published government information and should be covered by the same constitutional protections afforded the New York Times in The New York Times v. United States (1971), "The Pentagon Papers" Case.
In Assange's situation, the issue is not prior restraint but criminal liability, but certainly the same principles apply as we previously discussed. (Also consider the documentary on Daniel Ellsburg).
This issue has been brewing for a while. A good primer on the intersection between the Espionage Act and First Amendment protections of a free press, is Stephen Vladeck's 2007 article, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harvard Law & Policy Review 219, available here.
Thursday, April 25, 2019
The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and the Annals of Health Law & Life Sciences invite original submissions for presentations at the Thirteenth Annual Health Law Symposium: Addressing the Health Care Needs of Justice-Involved Populations, at Loyola Chicago, on Friday, November 15, 2019.
The call specifically includes "constitutional issues relating to the medical treatment [or lack thereof] of justice-involved populations."
Proposals (1,000 words or less) are due by June 15, 2019, to email@example.com.