Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally
By: Erin Ryan
This Essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution. In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. Building on his previous structural-governance research, he argues that constitutional ambiguities in the horizontal allocation of power are best resolved through legislative–executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal actors in the vertical-federalism context.
By: Larry Alexander
I have argued that a speaker’s mental state with respect to whether her words will cause harms that the government can legitimately seek to prevent should be immaterial to whether her speech is protected by the First Amendment—except to the extent her mental state bears on whether sanctioning her will chill others’ protectable speech. Recently, Professor Leslie Kendrick has taken issue with my position and the similar position of others. She argues that the speaker’s mens rea regarding the harmfulness of her speech affects the First Amendment protectability of her speech apart from chilling-effect concerns. The speaker’s mental state matters, not only for purposes of criminal law and tort law, but for free-speech law as well, and intrinsically rather than instrumentally. Although I accept the compliment of serving as one of her principal foils, I nonetheless continue to disagree with Professor Kendrick’s position.
By: Jared A. Ellias
Baird and Casey recently argued in favor of contractual innovations that allow lenders to contract around bankruptcy law. These innovations, which they call withdrawal rights, are said to increase the efficiency of financing in many cases, and Baird and Casey urge judges to enforce them. This brief Essay uses a case study of a Chapter 11 bankruptcy where withdrawal rights were enforced by operation of foreign law to challenge Baird and Casey’s assumptions.
The Constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in Light of Shelby County v. Holder
By: Georgina C. Yeomans
On October 28, 2009, President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law. The Shepard–Byrd Act received considerable attention because it was the first federal statute to criminalize violence based on “gender, sexual orientation, gender identity, or disability” in 18 U.S.C. § 249(a)(2)(A). But the Act was also revolutionary in the way it treated actual or attempted violence based on “actual or perceived race, color, religion, or national origin of any person” in § 249(a)(1). This provision eliminated the nexus to federally protected activities required by previous hate-crimes legislation. Congress premised its authority to drop the federal nexus for race, color, religion, or national origin in § 249(a)(1) on its power to promulgate legislation to eradicate “badges and incidents of slavery” under Section 2 of the Thirteenth Amendment. Importantly, this new legislation gives the federal government authority to prosecute a wider range of racially motivated violence.
By: Ian Farrell & Nancy Leong
Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow opposite-sex marriage while banning same-sex marriage—even if the ban triggers heightened scrutiny under equal protection or due process—because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.