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Abstract:
While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was far more common than previously recognized: there are more than five times as many cases from the Early Republic as the leading historical account found. The Article further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries, and they did so even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the federal constitution; and federal courts invalidated state statutes, and, again, they did so even when the statutes could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. The Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute and that courts aggressively protected their power, the power of juries, and the power of the national government.

Abstract:
In 1964, as the welfare state emerged in full force in the United States, Charles Reich published The New Property, one of the most influential articles ever to appear in a law review. Reich argued that in order to protect individual autonomy in an "age of governmental largess," a new property right in governmental benefits had to be recognized. He called this form of property the "new property." In retrospect, Reich, rather than anticipating trends, was swimming against the tide of history. In the past forty years, formal claims to government benefits have become more tenuous rather than more secure. "Overseers of the Poor: Surveillance, Resistance and the Limits of Privacy," by John Gilliom, an associate professor of political science at Ohio State University, demonstrates both the tenuousness of welfare rights today and the costs that this system imposes on individual autonomy.

In "Overseers of the Poor," Gilliom uses his case study of welfare recipients as the occasion for an attack on classic notions of privacy rights. Gilliom finds that welfare clients do not engage in "privacy talk" - indeed, he finds the concept to be devoid of value for the welfare recipients. Here, another comparison can be made with Reich's new property. Reich explicitly tied his idea of a new property right in government entitlements to privacy. He felt that the new property was needed to protect privacy, and, in particular, an individual's autonomy. Reich's notion of privacy reaches back to a classic concept of privacy, one that we term the "old privacy." It is precisely this classic idea that Gilliom finds welfare recipients to have rejected. Theoretical work inside and outside of the legal academy has pointed, however, to a "new privacy." The new privacy is centered around Fair Information Practices (FIPs) and is intended to prevent the threats to autonomy.

This Review begins by examining Gilliom's methodology and findings. It credits the insights of his look at the inner world of welfare recipients, but finds that he appears to ignore the need for income limits on aid recipients and the concomitant need for at least some personal information to enforce these limits. It also criticizes his failure to explore an interaction of an "ethics of care" among welfare recipients with possible use of retooled privacy rights or interests. In the second part of this Review, we consider the extent to which theoretical work inside and outside of the legal academy points to a new privacy and discuss how Gilliom's empirical research provides support for that scholarship. We will also evaluate the extent to which the new privacy, centered on FIPs, can prevent the threats to personal autonomy so poignantly identified by Gilliom.

Abstract:
Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor Amar's book, The Bill of Rights, the widely acclaimed masterpiece of the textualist movement, as a case study to test the validity of that assumption.

Amar's work has profoundly influenced subsequent scholarship and case law with its argument that the Bill of Rights primarily reflected republican rights of the people, rather than individual rights. This article shows that Amar's republican reading is incorrect and that his textualist interpretive approach repeatedly leads him astray. Amar incorrectly assumes that words have the same meaning throughout the document, assigns a significance to the placement of clauses that is belied by the drafting history, and incorrectly posits that the Bill of Rights reflects a unitary ideological vision. The textualist search for original public meaning cannot be squared with an interpretive approach that assumes that all word choices were made with a high degree of care, that the significance of location can be assessed simply by examining the four corners of the document, and that the Constitution must be understood holistically. Analysis of Professor Amar's The Bill of Rights indicates that, paradoxically, close reading is a poor guide to original meaning.

Abstract:
Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars.

In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard.

This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property.

In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.

Abstract:
Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This Article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How did the Founding generation think the Constitution should be interpreted?"; rather, it should be: "How did the Founding generation think courts should interpret the Constitution?" The early caselaw shows that courts aggressively used the federal Constitution and state constitutions to protect the power and autonomy of courts and juries; federal courts also closely circumscribed state powers when they appeared to violate the federal Constitution or implicated federal powers or other states. Outside of these areas, courts were wholly deferential. This caselaw indicates, then, that, for a modern court, recovering original meaning necessitates a central focus on structural concerns - protecting juries, courts, and the national government - rather than text.

Abstract:
Chief Justice John Marshall's opinion in Marbury v. Madison, though one of the most famous decisions ever issued by the Supreme Court is one of the most misunderstood. Marbury is widely thought to be the decision that created the doctrine of judicial review but by the time Chief Justice Marshall issued the opinion, judicial review was already generally accepted.. Marbury was, however, the first case in which the Supreme Court explicitly embraced the power and struck down a statute. The case was not simply an exercise of judicial review, but it reflected an expansive conception of the judicial power to review legislative acts affecting the judiciary and to review and provide remedies against Executive Branch decision making. In order to properly understand what Marshall accomplished with Marbury, the decision must be viewed in the context of the political disputes of the early nineteenth century, particularly contention between the Republican administration of President Thomas Jefferson and the Federalist-dominated judiciary. This essay establishes that background and then draws back chronologically and describes the early history of judicial review, highlighting the history of judicial review in Virginia to which Chief Justice Marshall would have been exposed as a young lawyer. The essay then turns to the decision itself and its significance in light of its unique context.

Constitutional History, John Marshall, Judicial Review, Marbury v. Madison

Abstract:
In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein's broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it.

Takings Clause, Eminent Domain

Abstract:
Dean William Treanor examines and celebrates the work of legal historian Morton Horwitz, author of two magisterial histories of American law, The Transformation of American Law, 1780-1860 (Harvard University Press 1977) and The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Oxford University Press 1992), through the lens of Horwitz’ path breaking treatment of takings law. With personal memories of Horwitz as a point of departure, Dean Treanor assesses Professor Horwitz’s contribution to the understanding of the evolution of theories of property and the history of the takings clause. Treanor highlights Horwitz’s ability to examine contending views of the takings principle from within the context of larger political and economic movements. Perhaps Horwitz’s greatest contribution to the ongoing conversation about the history of American law, in Dean Treanor’s view, is his awareness of a tension between the ambiguity at the center of takings doctrine and the constraining force of legal reasoning.

Takings Clause, Eminent Domain, Legal History, Morton Horwitz, Transfromation I, Transformation II, The Transformation of American Law

Abstract:
This essay draws on the examples of Watergate and Iran-Contra to offer a new perspective on Independent Counsel and their ability to investigate and prosecute high-level wrongdoing. The current consensus is that an Independent Counsel, appointed by judges of the special court pursuant to the Ethics in Government Act, will invariably investigate and prosecute crimes more vigorously than a Special Prosecutor appointed by the President or the Attorney General. Watergate and Iran-Contra suggest, however, that there are institutional and political factors that make analysis of the comparative tendencies of the two types of prosecutors more complex and dependent on circumstance. First, particularly when the other party controls Congress, the President has incentives to name as Special Prosecutor (or to have the Attorney General name as Special Prosecutor) someone whose background and reputation indicate that she will proceed aggressively; only a person with these attributes will be able to clear the President's name. In contrast, the special court potentially may select someone who fits into more of a "judge" model, whose background and reputation suggest that she will conduct a balanced inquiry. In addition, the fact that the Special Prosecutor is appointed by the President or the Attorney General operates against the President's ability to oppose forcefully the decisions of the Special Prosecutor that he disagrees with. Finally, as a litigator, the Special Prosecutor is better-positioned to argue that she represents the interests of the executive branch.