What do some Reconstruction-Era civil rights laws, the first federal income tax, and various pieces of New Deal economic legislation have in common? These are all laws that the Supreme Court has held totally invalid after concluding that they were partially unconstitutional.
The doctrine through which the Supreme Court accomplished… Read More »
In debates over civil litigation, class actions have long garnered considerable attention. Controversy continues to rage over efforts to certify class actions in the face of objections from defendants. Debate also swirls over their use as a vehicle for settlement, with the defendant’s consent. All of this ferment suggests that… Read More »
Professor Rick Hasen’s important new article, The Democracy Canon, identifies an intriguing and, until now, largely unnoticed practice in many state courts: the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters’ access to the polls, candidates’ access to the ballot, and ballots’ eligibility to be counted. … Read More »
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is… Read More »
Litigation challenging the amount of funding available to low-income school districts is one of several initiatives reformers have pursued to improve the quality of public schools. This particular approach, so-called education finance litigation, is specifically focused on reducing the funding disparity that continues to persist among school districts. The… Read More »
Constitutional scholars generally believe that the majority of the Supreme Court in The Slaughterhouse Cases erred in their narrow construction of the Privileges or Immunities Clause. Justice Samuel Miller’s attempt to distinguish the privileges and immunities of Article IV from the privileges or immunities of Section One is particularly vilified… Read More »
I. The Insulation Thesis
The standing doctrine is the Rorschach test of federal courts. In theory, the doctrine serves a distinct function, namely ensuring that a litigant is the proper party to bring a claim in court. Yet standing remains one of the most contested areas of federal law, with… Read More »
In 1970, Ruth Bader Ginsburg, soon-to-be head of the ACLU’s Women’s Rights Project (WRP), had a novel idea: She decided to challenge the constitutionality of sex-based state action by bringing cases featuring male plaintiffs. Up to that point, only women had brought sex discrimination claims under the Fourteenth Amendment. By… Read More »
Legal fictions are pervasive. Some are hopeful–when Chief Justice Roberts, for the plurality in Parents Involved in Community Schools, writes that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he is alluding to the aspirational fiction that racial categorizations are… Read More »
The Supreme Court’s recent decision in Pearson v. Callahan marked a turning point in a judicial experiment concerning § 1983 constitutional litigation, which began in 2001 with Saucier v. Katz. The experiment involved the doctrine of qualified immunity, an immunity from suit extended to state and local government officials (and… Read More »