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Rights, Remedies and Facial Challenges

Maya Manian

University of San Francisco School of Law

Hastings Constitutional Law Quarterly, Vol. 36, p. 611, 2009
Univ. of San Francisco Law Research Paper No. 2009-18

This brief comment extends upon a key point raised by Caitlin Borgmann’s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann’s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts’ manipulation of procedural rules regarding as-applied and facial challenges to cloak its overruling of substantive precedent. This comment also suggests that, given an environment of hostility towards facial challenges, civil rights litigants might better succeed in preserving constitutional rights by seeking narrower injunctive remedies against unconstitutional regulations rather than seeking total invalidation of such regulations.

Number of Pages in PDF File: 21

Keywords: constitution, constitutional law, constitutional litigation, facial challenges, as-applied challenges, abortion, health, Gonzales v Carhart, Roberts Court

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Date posted: April 24, 2009 ; Last revised: March 18, 2010

Suggested Citation

Manian, Maya, Rights, Remedies and Facial Challenges. Hastings Constitutional Law Quarterly, Vol. 36, p. 611, 2009; Univ. of San Francisco Law Research Paper No. 2009-18. Available at SSRN: http://ssrn.com/abstract=1392926

Contact Information

Maya Manian (Contact Author)
University of San Francisco School of Law ( email )
2130 Fulton Street
San Francisco, CA 94117
United States
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