Tag: Constitution

Collective Action Federalism: A General Theory of Article I, Section 8

Robert Cooter & Neil Siegel

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they… Read More »


Tom Ginsburg & Eric A. Posner

Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the “superstate”) has a constitution (a “superconstitution”) and the subordinate states (which we will… Read More »

Procreation, Harm, and the Constitution

Carter Dillard - Animal Legal Defense Fund

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances?  Second, can the state justify a legal prohibition on… Read More »

Salazar v. Buono: Sacred Symbolism and the Secular State

Ian Bartrum - Drake Law School

After oral argument, Salazar v. Buono looked like it might be a dud.  As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only… Read More »

Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006

Daniel E. Ho & Erica Ross

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 »

Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model

Alexander Reinert Benjamin N. Cardozo School of Law

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 »

Legislative Supremacy in the United States?: Rethinking the “Enrolled Bill” Doctrine

Ittai Bar-Siman-Tov - Columbia Law School

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 »

Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy

Anuj C. Desai Anuj C. Desai is an Associate Professor of Law at the University of Wisconsin.

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 »

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