Issue Archives
A relatively unheralded aspect of the Supreme Court’s controversial decision in Citizens United v. FEC is its strong affirmation of the constitutionality and utility of disclosure requirements for individuals and groups engaged in political advocacy. In both Citizens United and Doe v. Reed, decided a few months later, the Court issued prodisclosure holdings indicating its support for such laws. Nevertheless, the...
Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likelyto establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide...
When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property’s owners receive “just compensation,” which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates...
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregu-lated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual...
It seems almost beyond dispute that if the Federal Establishment Clause prohibits anything, it prohibits religious institutions from wielding governmental power. So thought the U.S. Supreme Court in Larkin v. Grendel’s Den, Inc. when it announced that the delegation of governmental power to churches amounted to an impermissible “fusion” of government and religion. Subsequent applications of the nondelegation rule have been...
Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the...
The special damage rule—a component of standing doctrine requiring a plaintiff’s alleged injury to differ somehow from that of the general public—has long thwarted citizen challenges to inaction by government regulators, particularly in environmental suits. While courts in many jurisdictions have trended toward relaxing the special damage rule in environmental cases, the requirement has not been similarly adjusted in other areas of...
In Reading Law, Justice Scalia and his coauthor, Professor Bryan Garner, promise that text-based statutory interpretation can be rendered more predictable and constraining if 57 “valid canons” are followed. Admiring the enterprise, this Review maintains that this regime would not solve the problems of unpredictability or judicial policymaking Reading Law identifies. For any difficult case, there will be as many as twelve to fifteen relevant...