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Abstract:
In the United States Senate, only a third of the members stand for election every two years, with two thirds of the members carrying over from one congressional term to the next. In this regard the Senate differs from the House of Representatives, where all members stand for election every two-year cycle. That much is familiar, but what legal consequences flow from this structural difference? According to some legislators, courts, and commentators, this difference is very important in that it makes the Senate, but not the House, a "continuing body." The continuing body idea is invoked to defend highly controversial aspects of Senate practice. By far the most familiar context in which the idea arises - and the one most likely to generate significant conflict - is the debate over the constitutionality of the filibuster. Under the current Senate rules, it is extremely difficult to restrict or eliminate filibusters, because any attempt to amend the Senate rules can itself be filibustered. Further, precisely because the Senate is considered a continuing body, these nearly unamendable Senate rules never expire but instead remain in effect indefinitely. As a result, the Senate's supermajoritarian rules are entrenched against future majoritarian change. The continuing body idea is thus used to justify an outcome that would otherwise seem to conflict with the usual principle that current legislative majorities are not bound by their predecessors' decisions.

The basic thesis of this Article is that the continuing body notion, though frequently invoked, cannot withstand scrutiny. I offer several arguments in support of that thesis. The arguments question the premises of the continuing body idea, attack its supposed conclusions, and demonstrate that, if taken seriously, the continuing body idea has consequences that few of us would accept. If these arguments succeed, then the most immediate consequence would be the loss of the primary contention in favor of entrenched Senate rules, but there would be other implications for legislative practice as well.

Senate, filibuster, continuing body, entrenchment, parliamentary procedure, nuclear option, reconciliation

Abstract:
Many observers believe that there is something seriously wrong with the current state of the judicial confirmation process, particularly that it features too much conflict and obstruction. This Article does not take sides on whether reform is necessary or desirable but instead examines the relatively neglected issue of the vehicle through which reform might take place - that is, the method of implementing whatever reform (if any) is thought appropriate. In particular, this Article will take up the question whether the confirmation process could be reformed not through the vehicles that are usually proposed - a constitutional amendment, a change to internal Senate rules, an informal deal or norm - but instead through the mechanism of a statute that would govern the Senate's procedures. The statute might, for example, purport to bar filibusters of judicial nominations. While employing a statute might at first seem peculiar, there is in fact a significant, growing, and interesting body of statutory law that governs internal rules of debate.

Is a statute a permissible method of reform in this context? This Article canvasses various potential impediments to employing a statute and concludes that the Constitution would not permit a statute to override the Senate's ordinary power to control its rules of debate. The reason that such a statute could not formally bind is that it would violate a structural principle of cameral procedural autonomy that is critical to the constitutional design. The Article nonetheless suggests that a confirmations statute might still have practical political effect even if it cannot be legally binding.

judicial confirmations, judicial appointments, confirmation process, filibuster, rules of proceedings, entrenchment, congressional procedure

Abstract:
This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better understand developments in arbitration doctrine by viewing the case law as the product of an ongoing strategic interaction between courts with differing preferences regarding the spread of arbitration. As the Supreme Court has shut off most other means of resisting arbitration, the state law doctrine of unconscionability has in the last several years become a surprisingly attractive and successful tool for striking down arbitration agreements. The nature of unconscionability analysis is that it is flexible, which provides opportunities for courts skeptical of arbitration to use the doctrine to evade the Supreme Court's pro-arbitration directives while simultaneously insulating their rulings from Supreme Court review. Sophisticated resistance to arbitration is just one side of the story, however. The approach employed in this Article examines the judicial system as a whole, including the ways pro-arbitration courts respond, sometimes indirectly, to what they perceive as manipulation of unconscionability. The suspicion that some courts are disfavoring arbitration drives pro-arbitration courts to change their strategies, such as by establishing new doctrine that facilitates monitoring and shifts decisionmaking authority. This strategic framework can help us make sense of otherwise puzzling trends in arbitration doctrine and can help us predict what moves will be next. Although the specific subject matter is arbitration, this analysis is also aimed at those interested in more general problems of judicial federalism.

arbitration, Federal Arbitration Act, unconscionability, strategic instruments, judicial politics, judicial federalism

Abstract:
In a thought-provoking article entitled Noncontemporaneous Lawmaking, published in the Cornell Journal of Law & Public Policy, Seth Barrett Tillman presents the argument that the Constitution's plan for lawmaking does not require that the House and Senate both pass a particular bill during the term of the same Congress. Rather, as his article's subtitle indicates, the Senate of the 110th Congress could enact a bill passed by the House during the 109th Congress. This argument runs contrary to the conventional wisdom, which holds that a bill passed by only one house dies at the end of the two-year Congress. Is Tillman right, or should the Constitution be interpreted to avoid his surprising result?

In this brief response, I defend the conventional view that the Constitution includes a principle of contemporaneity. The contemporaneity requirement is one of those constitutional rules that 'everyone knows' (or at least thinks they know) but that is seldom explained. Although Tillman is correct that the constitutional text is at best coy regarding the need for contemporaneity, various structural, practical, and historical factors support some type of contemporaneity requirement. I do, however, leave open the possibility that the contemporaneity requirement might be satisfied by procedures that differ from those with which we are familiar.

bicameralism, presentment, Congress, legislative process, Twenty-Seventh Amendment, treaty formation

Abstract:
Contemporary liberal theorists see value pluralism as a permanent social fact, the natural and inevitable result of living under free institutions. Yet while value pluralism is desirable for many reasons, this same pluralism can threaten the efficacy and the authority of the state. Thus, as Rawls frames it, the fundamental question of the liberal state is: How may there exist a stable and just society of free and equal citizens profoundly divided over their religious, philosophical, and moral doctrines? His answer - embraced by many other liberal theorists as well - relies in large part on the idea of public reason. Public reason requires officials and (sometimes) citizens to forsake potentially divisive appeals to inherently contestable theories of the good life and instead appeal to political values shared by all reasonable inhabitants of a liberal democracy.

This Article addresses the strategy of public reason. One trouble with public reason is that it is what economists recognize as a public good. Under the conventional theory of collective action, this has dire consequences for the success of public reason. The public goods analysis can thus help provide an account of why public reason often fails us, even if most citizens believe in public reason's aims. The Article then analyzes public reason using an alternative theory of collective action grounded on an empirically observed norm of reciprocity. This analysis leads to a richer, somewhat less pessimistic understanding of the strategy of public reason and generates different policy prescriptions than does the conventional model.

Rawls, public reason, reciprocity theory, assurance game

Abstract:
The Supreme Court invalidated a type of line item veto a decade ago in Clinton v. City of New York. Yet for the past several years, there have been renewed calls for Congress to enact a "line item veto." In truth, the recent proposals do not contemplate an actual line item veto but instead would create a statutory fast track regime under which the president can pull together a list of spending items from recently enacted bills and then submit the list to Congress, which is required to re-vote on the targeted items under special parliamentary rules.

This Article has the twin aims of examining the constitutionality of the proposal and exploring some of the institutional dynamics that surround it. The new proposal is not susceptible to the constitutional attack that doomed the last experiment with a line item veto in Clinton v. City of New York. But the more interesting constitutional questions concern whether Congress is really required to follow the special parliamentary rules that the statute creates. If not, then what is the purpose of the statute? As I explain, there is reason to believe that the statutory procedures would sometimes be followed in practice even if they are not formally binding. I offer a tentative assessment of the institutional circumstances under which the rules would likely be obeyed. The conclusion is that the new mechanism would more likely be used as a partisan tool than as the good government measure that is advertised. I also explain the extent to which this proposal would differ in practical operation from a more conventional line item veto.

line item veto, legislative process, framework laws, expedited rescission, parliamentary procedure, separation of powers

Abstract:
Each house of Congress ordinarily governs its proceedings through its own standing rules or through informal means such as consent. But sometimes Congress passes a statute that purports to regulate its parliamentary procedures. Indeed, such statutes have become increasingly prevalent in recent decades. The most famous of these regimes of "statutized rules" is probably the fast track procedure governing congressional consideration of trade agreements, but there are dozens of other examples spread throughout the US Code.

These proliferating statutes raise a number of interesting questions that have been little explored in the literature. Why would Congress use a statute instead of a rule? Is Congress legally required to follow these statutes, and does it typically follow them in fact? If statutized rules are unconstitutional, why? This article explores and offers preliminary answers to those questions. It concludes that such statutes can be either binding or constitutional, but not both.

rules of proceedings, fast track, framework legislation, congressional procedure, entrenchment, separation of powers

Abstract:
This Article addresses a relatively neglected portion of the United States Supreme Court's docket: the "GVR" - that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year.

This Article has two parts, one descriptive and one cautiously prescriptive. First, because we currently lack systematic data on GVRs, the Article begins by collecting and analyzing over a decade of data, with additional data on certain categories of GVRs that are sometimes considered controversial. Second, the Article uses the data to critically examine the GVR device. As we learn more about GVRs, we might come to regard the entire practice - not just a few particular sub-categories - as more problematic than previously recognized. This realization might lead us to consider whether there is a different approach that would better serve the interests of litigants, the Supreme Court, and the judicial system as a whole. Accordingly, the Article proposes an alternative to the current GVR practice that attempts to preserve the attractive features of the current practice while reducing the Court's role in overseeing the implementation of changes in law.

Supreme Court, GVR, remand, Solicitor General, appellate procedure

Abstract:
This paper advances a rights-based approach to our relations with future generations. It first explains why an account of intergenerational relations is necessary and why a rights-centered approach represents the correct approach. While not denying that there can be more to our shared moral and political life than rights, I argue that this situation is one in which rights are the appropriate idiom. The paper then addresses the central question of how it is possible for future people to hold rights against us. How can we violate the rights of someone who does not yet exist and whose existence may indeed depend on which choices we make? The discussion includes an attempt to deal with the non-identity problem posed in the work of Derek Parfit. Although the main focus is broader themes of intergenerational justice, there are implications for wrongful life torts and the reparations debate. Last, the paper tentatively sketches the content of the rights held by future people.

intergenerational, Parfit, identity, non-identity, future people, Hohfeld, rights, wrongful life, reparations