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The Human Dimension of “Home”
No full textAll societies provide a legal framework that protects the pivotal functions of home and family. None provide a clear legal definition of “home”. Nor, this article argues, can they. “Home” is a concept rooted in the lived experience of human persons. In this article, the second in a series, the author employs the “human dimension” [HDIM] concept, initially developed by the U.S. military and later adopted by the Organization for Security and Cooperation in Europe, as the lens through which one can examine the “human element” of human rights. The framework for this analysis is the “four clusters of value-types” described by Professor Lorna Fox O’Mahoney: home as a physical structure, home as a center for self-identity, home as a social and cultural unit, and home as a territory. It concludes by observing that unpacking the concept of “home” is the logical starting point for a much broader effort to examine the “human dimension” of human rights law and policy in general
Panel 2: Perspectives on Severability
No full textPanel 2: Perspectives on Severability Moderator: Professor Derek Webb, Catholic Law Panelists: Professor Amy Moore (Belmont University College of Law) and Professor Kevin Walsh (Catholic Law
A Conversation with Judge Stephanos Bibas
No full textOn Friday, March 28th, 2025, the Catholic University Law Review hosted its annual spring symposium: Traditional Judicial Power & Doctrinal Development, which included a conversation between Judge Stephanos Bibas and Professor Kevin C. Walsh. The conversation covered topics such as standing, severability, and preliminary injunctions. This is a transcript of the conversation, and the text appears substantially as it was delivered
Disregarding Severability
No full textThe infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts\u27s reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the statute itself. The cleanest way to complete the task begun in Arthrex is for a Court majority to explicitly adopt disregard as a replacement for severance. One promising path toward completing the shift from severance to disregard would be through the Court\u27s explicit repudiation of the litigation-expanding technique that William Baude has described as “bank-shot” standing. This technique should instead be recognized and rejected as impermissible “Jenga-loser” standing. Parties should not be able to topple statutes by inviting courts to pull out provisions that do not apply to them
Facial Challenges, Remedies, and the Judicial Power
No full textThe era of big remedies is over. In Trump v. CASA, Inc., the Supreme Court last Term held universal injunctions to be unlawful under the Judiciary Act of 1789. But the decision was just one piece of a larger remedial renaissance at the Court, a doctrinal reorientation accompanied by a deeper theoretical and practical shift towards a more formalist understanding of the judicial power as the ability to determine the rights of parties to concrete disputes properly before the court. While CASA commentators have been quick to identify certain doctrines implicated by the decision and its theoretical logic, such as class actions and vacatur under the Administrative Procedure Act, this Article examines a thus-far neglected frontier for the Court\u27s remedial revolution: facial challenges. Much like universal injunctions, facial challenges have been attacked as dangerous exercises of the judicial power, allowing courts to strike down actions of the political branches across the board, even as to nonparties. But drawing on the theoretical insights from CASA and other cases from the Court\u27s remedial turn, this Article demonstrates facial challenges do no such thing. Rather, this understanding of facial challenges erroneously conflates two separate inquiries: the reasons for a statute\u27s facial invalidity, and the remedies that supposedly result in the statute\u27s facial invalidation. It is only in the latter, through a judgment and remedy, that a court exercises the judicial power, so only by purporting to invalidate statutes as to nonparties does a court push the bounds of Article III. Litigants thus remain free to argue that a statute is facially invalid, even if a court holding as much would create precedent that would apply to nonparties. This Article\u27s disaggregation of reason and remedy on this novel frontier of facial challenge doctrine does two important things at once. It defends facial challenges as arguments for unconstitutionality, while simultaneously offering reform that aligns the doctrine with the Court\u27s formalist desire to return the judicial power to its proper constitutional scope
Bruen Was Right
No full textNew York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the consensus view among nearly all constitutional scholars is that Bruen’s text-and- history test is a mistake. According to originalists and non-originalists alike, Bruen’s methodology lacks a theoretical justification, is inherently manipulable, and is doomed to fail in its attempt to replace tiers-of-scrutiny-like judicial balancing tests.
I argue that Bruen was right. Its theoretical justifications are sound; its methodology is principled; and its capacity to replace judicial balancing tests like the tiers of scrutiny is demonstrable. In Parts I and II of this Article, I provide an exposition of the method and justification of Bruen’s text-and-history inquiry, followed by responses to the principal scholarly criticisms of Bruen’s methodology. In Part III, I examine recent scholarly defenses of Bruen’s rival—the tiers of scrutiny— and argue that Bruen represents a better approach to adjudicating constitutional rights.
The combined result of these three Parts is the most comprehensive explication and defense of Bruen’s methodology to date, a defense that is unique in a literature dominated by criticisms of Bruen. It is a defense that requires confronting some of the most vexing problems in constitutional law, such as the level-of-generality problem and the role of balancing tests in the adjudication of constitutional rights. Because these problems recur throughout constitutional law, this Article’s contributions are relevant beyond the debate over Bruen—and to originalists and non-originalists alike
Associational Rights Versus Nonprofit Transparency: Information Reporting In The Internet Age
Full text linkFor decades, the nation’s charitable and nonprofit organizations have been required to file an information return, known as the Form 990, with the Internal Revenue Service. Congress mandates that the return be made publicly available. Such information reporting, both to the IRS and to the public, is the cornerstone of the federal government’s approach to assuring that nonprofit organizations are legally compliant. The Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta (APF), however, casts a shadow on the constitutionality of nonprofit reporting requirements. In APF, the Court held unconstitutional California’s effort to require charities to disclose their major donors, finding that compelled disclosure rules presumptively impose a burden on First Amendment associational rights, even for confidential disclosures to the government. The Court also said that compelled disclosure rules are subject to exacting scrutiny and narrow tailoring. The federal nonprofit reporting regime therefore, post-APF, must undergo exacting scrutiny for the first time and may fail under the First Amendment
The Assault on American Labor Law
No full textThe National Labor Relations Act (NLRA), signed into law by Franklin Delano Roosevelt in 1935, guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Since its passage, the NLRA has functioned as the foundational statute of United States labor law. Opposed by conservatives and members of the Republican Party from the beginning, its provisions were largely upheld by the Supreme Court until the 1960s. In the latter part of the twentieth century and into the twenty-first, however, the Court began to erode the protections of the NLRA. While some cases have received widespread attention from commentators and scholars, such as Starbucks Corp. v. McKinney (2024), there have been numerous detrimental rulings that are little discussed. Taken as a whole, the Supreme Court’s efforts to undermine the NLRA appear sustained and systematic. By examining approximately 100 cases, Hartley demonstrates that the Court has often operated more like a legislature than a judicial body, effectively amending the NLRA’s collectivist policy underpinnings in favor of the interests of individuals and businesses. These judicial decisions create staggering obstacles for American workers to collectively organize and force them to face globalization, deindustrialization, and technological change individually, without the negotiating leverage provided by union representation. While scholars have suggested individual reforms to re-establish the efficacy of the NLRA, Hartley’s thorough study illuminates how the current crisis in US labor law evolved—a comprehensive view that is necessary to help restore the rights of workers to unionize.https://scholarship.law.edu/fac_books/1153/thumbnail.jp