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Blunt Speech Rights
Get PDFThere is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a decision. Jamal Greene argues that blunt rulings are part and parcel with the general approach to constitutional jurisprudence of treating rights as trumps. But I think there is more to it in this area of law than that. Sometimes a blunt, sweeping rule can be a good thing— simplicity has its virtues. A simple, categorical rule can be easier to understand and apply, clearer, and better engage with the public. At the end of the day, though, 303 Creative LLC does not fully deliver on those virtues.
This abstract has been taken from the author\u27s introduction
An Interview with Davison Douglas
Get PDFI sort of made a promise for myself. I\u27m going to make sure that I am connected with the students. And I know I have a busy job, and I know that a lot of deans don\u27t do that... that became something, for the rest of my time when I was the dean, is I wanted to know who the students were. I wanted to connect with the students. -- Dave Douglas
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Douglas was interviewed in William & Mary’s Media Center on April 29, 2024. He began by discussing his academic career in history and religion, and how the lonely lifestyle pushed him to pursue law while he was finishing his doctorate. He described his love for teaching and his arrival at William & Mary Law School and spoke about the origins of his interest in civil rights law. Douglas then talked about the leadership roles he held while on the faculty, his transition to dean, and the changes in the law school’s facilities, faculty, and curriculum offerings. Throughout the interview, Douglas emphasized his love for working with students and how he strove to stay connected with them.https://scholarship.law.wm.edu/oralhist_all/1016/thumbnail.jp
A Threshold Test for Fed Activism
Get PDFRecent years have witnessed robust academic and policy debates about the scope of issues the U.S. central bank, the Federal Reserve (the Fed), should attempt to tackle. Some propose expanding the Fed’s remit to help address societal problems like racial inequality and climate change, either through a broader interpretation of the Fed’s current mandate, or through new legislation explicitly delegating new responsibilities to the Fed. Others argue that the Fed should “stay in its lane,” with a particular focus on ensuring democratic accountability and a tighter fit between what the Fed does and what it is statutorily authorized to do. This Article contributes to the debate by proposing a threshold, two-factor test to guide when the Fed—and those delegating authority to the Fed—should shy away from an expansive view of its mandate. If an issue is both (a) politically contentious and (b) capable of being addressed with equal or greater efficacy by institutions other than the Fed, then the Fed should remain on the sidelines. These factors aim to filter out actions that could draw the Fed unnecessarily into partisan politics, and thereby undermine its ability to perform its core functions, while retaining its discretion to act aggressively and creatively in response to urgent crises that lie squarely within its mandate
Originalism\u27s Selection Problem
Get PDFThis Essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.
This abstract has been taken from the author\u27s introduction
In Praise of Ignoring Facts
Get PDFTreating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of what American constitutional law provides ought to be responsible to a theory of what American law provides, which in turn ought to be responsible to a theory of legal content more generally. Or, to put it in slogan form, constitutional theory needs more theory—less court- or lawyer-watching and more concern about distinguishing the content of the law from the many other law-adjacent phenomena in a complex society like ours.
This abstract has been taken from the author\u27s introduction
Invocations of Memory in State Constitutional Law
Get PDFThis Symposium Essay discusses the roles of history and memory within the realm of state constitutional law. Building on Professor Balkin’s observations, I offer two claims. The initial argument, delineated in Part I, is descriptive. While the practice of state constitutional law often mirrors that of federal constitutional interpretation, the use of history in state constitutional interpretation has unique characteristics, both with respect to text and ethos. Regarding textual analysis, understanding the language of a state constitution often involves engaging with a concept referred to by some scholars as “interconstitutionalism.” This phenomenon occurs when a single governmental body has operated under multiple constitutions. Often, language present in the current constitution can be traced back to similar or identical terms in preceding documents. This historical overlap leads to complex interpretive challenges. Further complexity arises with the application of originalism to these challenges, compelling interpreters to determine the precise “original” moment to consider: the adoption of the new constitution or that of an older iteration. The relatively frequent adoption of new state constitutions—beyond mere amendments—introduces interpretative principles that are unnecessary at the federal level, fostering historical interactions that are distinct from those in federal constitutional practice. Moreover, state courts sometimes invoke the ethos and unique histories of their states when interpreting the proper reach of rights-based and structural doctrines. These moves are especially prominent when a state court is interpreting a state constitutional provision differently than the way a parallel provision has been interpreted in the federal constitution or in other state constitutions.
The second assertion, presented in Part II, adopts a more aspirational tone. Numerous scholars have advocated for the inclusion of marginalized voices in historical arguments. Despite being in the majority, the voices of women and people of color were often historically suppressed through structural and physical violence. Therefore, their historical views and voices can unwittingly be overlooked today without attention and care. This is not a minor problem to be treated as an unfortunate feature of the past before quickly moving on and deploying historical arguments that continue to mute and ignore their perspectives. I have previously contended that neglecting to incorporate these perspectives introduces ethical, democratic, and empirical challenges. In Part II of this Essay, I observe that the distinctive nature of state constitutional analysis suggests that incorporating marginalized voices into the historical narrative of state constitutions may differ from the federal approach across both dimensions explored in Part I: textual interpretative principles and ethos. State constitutions present both unique opportunities and unique risks.
This abstract has been taken from the author\u27s introduction
Permitting the Future
No full textIntroduction to the research colloquium, Permitting the Future (2023) sponsored by the Coleman P. Burke Center for Environmental Law and the Property and Environment Research Center.
Papers explore the ways in which the extensive permitting and review requirements adopted at the federal and state level are constraining needed development and infrastructure and suggest possible avenues of reform
Andalas University Center for Constitutional Studies and the Constitutional Court of Indonesia in Padang and Jakarta, Indonesia
No full textMecca Vance [1L] will spend the first half of her summer at the Center for Constitutional Studies at the University of Andalas, where she will conduct comparative research on issues relating to Indonesia’s constitution. She will then work in the Chambers of Deputy Chief Justice Saldi Isra, assisting in the court’s oversight role with respect to the executive branch of government