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 »
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 “enrolled bill” doctrine (EBD) requires courts to accept the signatures of the Speaker of the House and President of the Senate on an “enrolled bill” as unimpeachable evidence that the bill has been constitutionally enacted. This doctrine has the powerful effect of preventing judicial review of the legislative process—that is,… Read More »
As the new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy. Still unresolved from the previous administration are the legality of President Bush’s so-called Terrorist Surveillance Program (the National Security Agency surveillance program code-named “Stellar Wind” that was first… Read More »