• Selected
• Entire List

Abstract:
Paul Mishkin was a colleague and a teacher to us, and we each esteem him as a master craftsman of the law: learned, wise, and far-sighted. To re-read his publications is to enter an astonishing world of clarity and integrity, a world in which no word is wasted and insight is deep and revealing.

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former.

Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this persistent but necessary tension, which he conceived almost as a form of antinomy.

In this article we pay tribute to Mishkin's quest for understanding. We argue that the tension identified by Mishkin is significant and unavoidable, but that it is also exaggerated because it presupposes an unduly stringent separation between professional reason and popular values. In our view the law/politics distinction is both real and suffused throughout with ambiguity and uncertainty. The existence of the law/politics distinction creates the possibility of the rule of law, but the ragged and blurred boundaries of that distinction vivify the law by infusing it with the commitments and ideals of those whom the law purports to govern.

Abstract:
Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to the nation as a whole by accomplishing two paradoxically related preconditions and purposes of law: expressing social values as social circumstances change and sustaining social solidarity amidst reasonable, irreconcilable disagreement. I derive judicial statesmanship from an understanding of the preconditions of law's public legitimation and from an understanding of the purposes of the institution of law. I demonstrate that statesmanship is a necessary, although not sufficient, component of judicial role.

I argue that judicial statesmanship is not sufficient to legitimate the legal system because there are other major purposes of law with which statesmanship can be in tension, especially those advanced by maintaining fidelity to such rule-of-law values as consistency and transparency. But I also argue that statesmanship is necessary if law is to fulfill all of its functions and to take account of the conditions of its own legitimation. The rule of law depends for its practical realization on political trust between the government and the governed. In circumstances in which trust is strained, the virtue of statesmanship is especially valuable and produces leadership.

I illustrate the present importance of judicial statesmanship by engaging some instances of its existence or absence during the U.S. Supreme Court's October 2006 Term. I argue that Justice Kennedy's controlling opinion in Parents Involved in Community Schools v. Seattle School District No. 1 seems in important ways to exhibit the practice of judicial statesmanship but that his majority opinion in Gonzales v. Carhart will in most respects likely prove a failure of statesmanship.

Abstract:
In deciding Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court of the United States will likely confront a critical issue to emerge from the lower court opinions on voluntary integration plans: whether school districts that use race as a factor in student assignment must comply with a legal requirement of individualized consideration. The Court has imposed such a requirement in other contexts, but it has not clearly explained what the concept of individualized consideration means and why particular forms of it matter.

This Article clarifies the meaning and function of individualized consideration as both a concept and a legal requirement. After defining the concept apart from any legal requirements, the Article surveys the Court's cases - from affirmative action in higher education, to race - conscious redistricting, to affirmative action in government contracting - in order to identify the principal concern to which different requirements of individualized consideration respond.

This survey reveals the key determinant of the type of individualized consideration that the Court requires in a given context: its judgment about how the use of racial criteria will likely impact racial balkanization in America over the long run. Accordingly, this Article assesses the constitutionality of the two plans before the Court in light of this concern. The question is how the use of race in student assignment affects balkanization.

After identifying three compelling interests that support race-conscious assignment plans, this Article recommends an individualized consideration requirement that is modest in its demands. This is because voluntary integration plans likely reduce balkanization when school boards make only limited use of racial criteria in granting or denying student requests for certain schools and do not impose significant burdens on individuals.

Finally, this Article applies the standard it proposes to the plans before the Court. It concludes that the Seattle, Washington plan is more suspect than the Jefferson County, Kentucky plan, but that both likely meet the individualized consideration requirement that the Court's cases suggest is most appropriate in this setting.

Abstract:
It seldom happens that a scholar makes a lasting contribution both to legal history and to the most pressing constitutional issues of the day in the same work. It is more rare that an academic does so in a book accessible to a general audience. Perilous Times accomplishes that feat. For these reasons, and for another as well, the book should be regarded as a triumph.

Abstract:
As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it cannot realize directly. In this article I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but not great caution. It may sensibly operate within the large universe of interventions that do not implicate the subject matter of previous decisions. Moreover, Congress may sensibly operate within the small universe of interventions that do implicate the subject matter of past rulings if the Court in these decisions indicated the permissibility of a Spending Clause substitute or if Congress deems its interest sufficiently important that it is worth taking the modest risk of causing the Court to revisit Dole.

Abstract:
This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the commandeering ban would cause the federal government to respond by engaging in preemption, giving states a choice between commandeering and preemption, using the conditional spending power, or declining to regulate, this inquiry primarily advances a conceptual claim. Because there often will exist a non-trivial chance that Congress will engage in preemption when it cannot commandeer, and because it is impossible for the Court to know at the time of judicial decision where a given case fits along the continuum of preemption probabilities, federalism doctrine requires a strategically sophisticated conceptual system, one that takes into account all of the regulatory possibilities before Congress.

This inquiry recommends replacing the Court's categorical anticommandeering rule with a legal standard that is sensitive not only to accountability concerns, but also to the feasibility of preemption should commandeering be prohibited and to the financial burdens imposed by commandeering. One payoff of this approach is that it turns the conventional wisdom about New York and Printz on its head. Because preemption was reasonably available in the short run only in New York, and because accountability concerns were not greater in New York, Printz remains a close case, but the Court in New York should have rejected the state's Tenth Amendment challenge. After anticipating various objections, the author employs a post-9/11 terrorism hypothetical to illustrate the argument's potential relevance and force.

Abstract:
Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a convincing normative theory of judicial review. I begin by inquiring whether minimalism accurately describes many of the most important decisions from the October 2003 Term. In order to investigate that question, however, I must give minimalism an operational definition that is empirically falsifiable. Part I derives, from among the possibilities evident in Professor Sunstein's descriptions, a definition focusing on the narrowness and shallowness of judicial decisions. This is the only version of minimalism that does not incorporate criteria so vague and contestable as to render the theory nonfalsifiable and thus empirically useless.

Part II demonstrates that, so understood, the theory cannot account for many of the Court's most significant rulings from the October 2003 Term. Part III shows that the version of judicial minimalism most susceptible to empirical testing has little attraction as a normative account of how the Court should resolve constitutional controversies.

A brief conclusion identifies some rehabilitative options potentially left open to judicial minimalism going forward. One is to test more modest descriptive claims about Supreme Court decisionmaking. Another is to embrace a contextually justified apprehension of the valuable lessons of prudence that historically have animated constitutional theories evoking the work of Alexander Bickel. Those powerful themes are present in Professor Sunstein's work.

Abstract:
Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in their favor.

In this inquiry, I examine the effects of international delegations on the values of federalism, and I conclude that the relationship between an international delegation and federalism values depends upon what would happen in the absence of the international delegation. When the delegation replaces regulation by the federal government that would have displaced state choices anyway, then the delegation has no effect on state regulatory control but an uncertain net effect on federalism values. As I show, the impact turns on the relative inclinations of the federal government and the international body to decentralize.

When, however, there would be no federal regulation in the absence of an international delegation, so that the delegation reduces state autonomy, then the justifications for international delegations, whether constitutional or prudential, do not include the values commonly understood to be associated with federalism. In this situation, the submission that international delegations diffuse political power is unpersuasive: power is more diffused when fifty states maintain control than when one international body is delegated authority. When international delegations reduce state control, moreover, they compromise every other value that federalism is commonly thought to advance.

Abstract:
This Comment argues that economic analysis provides an inadequate account of judicial behavior because economic models are incompatible with a jurisprudence that recognizes basic rule-of-law values. Whereas standard economic theory is committed to thinking of a judge as exclusively self-interested, two fundamental problems with this conception exist. First, as application of Amariya Sen's critique of the behavioral foundations of economic theory to judicial behavior reveals, the decision of a judge who meets her judicial obligations may fail to maximize her self-interest. Second, even if the self-interest-maximizing decision coincides with the behavior that her judicial obligations require; economic models still fail to provide an accurate explanation of judicial decision making. This inability is attributable to economic theory's failure to recognize the distinguishing feature of judicial behavior--what H.L.A. Hart compellingly describes as relating to a rule from the internal point of view.

In Overcoming Law Richard Posner anticipates this Comment's challenge to the economic analysis of judicial behavior, but significant problems exist with his attempt to meet it. Because Posner assumes away the problem of obligation and reduces judicial motivation to self-interest, his method neglects Hart's concern with the internal aspect of obligatory social rules. It is thus incompatible at the theoretical level with the liberal ideal of the rule of law.

Additionally, Posner's approach is anti-empirical by methodological necessity. Thus, his assertions notwithstanding, his theory of judicial behavior is no more empirically grounded than the liberal jurisprudence whose conception of the judge he derides. Nevertheless, this reality does not absolve adherents of liberal legal philosophy from the responsibility of empirically testing their own understandings of judicial behavior. Rather, researchers need to test empirically both Hart's and Posner`s accounts of why judges follow institutional rules. In particular, in addition to observing judicial behavior; investigators need to persuade judges to introspect about and communicate their experiences of themselves and each other on the bench.

Abstract:
In this essay, Prof. Siegel identifies several uses of transnational perspectives in first-year constitutional law: (1) comparing American constitutional arrangements to those in other countries; (2) teaching international law and foreign legal experiences when relevant to U.S. litigation in the war on terror; and (3) examining the U.S. Supreme Court's invocations of foreign legal practices. These uses are illustrated with examples from doctrinal areas that are covered in his course. While each use serves a distinct pedagogical purpose, cumulatively they underscore the increasing importance of transnational legal perspectives in U.S. constitutional law. He concludes, however, with a cautionary note. Selectivity and modesty are warranted, he suggests, because the course appropriately focuses on the United States, teaching time is scarce, coverage tradeoffs abound, the subject matter is complex, and one cannot easily construct transnational examples that are both intellectually serious and pedagogically tractable.

Abstract:
This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to the collective action problem that the Justices face. Most importanly, however, by focusing on the strategic dimension of stare decisis and identifying the long-term effects of the Court's tendency to overrule decisions when, and only because, a change in its composition empowers a new majority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitutional status of state sovereign immunity.

Abstract:
No Abstract Available.

Abstract:
During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the understanding of the judicial role animating the umpire analogy and the actual practice of constitutional adjudication in the race conscious student assignment cases recently decided by the Supreme Court of the United States. I argue that those cases vividly illustrate how inapt the umpire analogy is if one takes its appeal to formalism seriously as a statement about how judges can or should execute their responsibilities in constitutional cases.

The umpire analogy would have judges just decide constitutional cases according to the rules. Judges, however, cannot just decide constitutional cases according to the rules because they cannot agree on what the rules are in the vast majority of the most important cases. Judges cannot agree on what the rules are in such cases because a critical purpose of constitutional rules is to express a social vision, and many social visions in contemporary American society are deeply contested. Instead of pursuing the impossible task of simply applying the rules, the judiciary does its job and sustains its institutional legitimacy over the long run in significant part by articulating a vision of social order that resonates with fundamental public values. The school cases exemplify a social practice in which judges make contested appeals to popular ideals in fashioning - not merely applying - the rules that constitute contemporary constitutional law.

In Part I, I examine the virtues and vulnerabilities of the umpire analogy. In Part II, I identify pertinent parts of the judicial opinions on voluntary integration plans. In Part III, I explore what those opinions elucidate - and what the umpire analogy occludes - about the preconditions of law's public legitimation and the purposes of the institution of law, particularly in the area of constitutional law.