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The Collective-Action Constitution
No full textThe primary structural purpose of the US Constitution is to empower the federal government to solve collective-action problems for the states and to prevent the states from undermining these solutions or causing such problems. Any faithful account of what the Constitution is for and how it should be interpreted must include this main structural function. The Constitution was established principally because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address multistate collective-action problems, including funding the national government, regulating foreign and interstate commerce, and defending the nation from attack. These challenges are called collective-action problems because the states would need to act collectively, not individually, to solve them, and they would often struggle to do so. In a fundamental sense, the US Constitution is the Collective-Action Constitution, and the sobering problems facing America today—including inadequate access to health care, climate change, the COVID-19 pandemic and future ones, opioid addiction, gun violence, racism and other bigotry, political extremism, unlawful immigration, terrorism, and nuclear proliferation—cannot be adequately dealt with by government if Americans do not recognize this truth. The main goal of the Collective-Action Constitution is not to vindicate a conception of economic efficiency but to create and maintain political and economic union
Narrow But Deep: The McCulloch Principle, Collective-Action Theory, and Section Three Enforcement
No full textIn Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding President Donald J. Trump from the Republican Party\u27s primary ballot in the state. The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment. Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court\u27s rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or the Court\u27s own precedent interpreting them. This Essay nonetheless argues that the Court\u27s judgment is justifiable on structural grounds. As envisioned in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Constitution\u27s federal structure bars states from enforcing Section 3 against candidates for President or Vice-President, at least if they enjoy substantial support within their own political party. More than two centuries ago, McCullocharticulated a structural principle that disables states from causing multistate collective-action problems by interfering with a function of the national governing process. That structural, collective-action principle extends in parallel fashion to actions by states that interfere excessively with a function of the national political process. The Presidency, along with the Vice-Presidency, is a uniquely national office because all states, and all voters in states, play a role in determining who will run for that office and ultimately occupy it. Just as a part may not tax the whole because the whole is not represented in the part, so a part may not make presidential eligibility decisions that significantly undermine the capacity of the whole to determine who will represent it in the White House. Legal scholars can justly criticize the Court\u27s reasoning in Trump v. Anderson, but not the result that it reached
The Major Questions Doctrine at the Boundaries of Interpretive Law
Get PDFThe Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost entirely alone in its structural features. With the exception of the much-maligned absurdity doctrine, the new major-questions-doctrine-as-clear-statement-rule is the only substantive canon that combines two extreme design elements of canons: first, a weak relationship to existing authoritative constitutional law, and, second, unbounded potential applicability. While courts and scholars have accepted or created many canons that have one or the other of these extreme features, they have conspicuously avoided combining these two features in any new canon—perhaps because the combination exponentially increases the potential interference of canons with Congress’s exercise of the legislative power. This avoidance has helped to keep the Court’s use of substantive canons within recognizable boundaries that preserve a limited role for the judiciary. Now that the modern Court has, for the first time, taken this step in the recognition of a new canon, it is time to assess the limits of canons in a system of limited judicial power.
This Article undertakes that project, finding that the major questions doctrine’s novel features are a tell of serious theoretical and constitutional infirmities. If canons can take on this unique combination of features, there are no speed brakes to stop the unraveling of the faithful agent model at the center of standard textualist and intentionalist accounts of the judicial power to interpretstatutes. If such canons could be justified at all, it would only be under a more dynamic statutory interpretation approach that explicitly departs from legislative supremacy, but the extremity of the major questions doctrine potentially goes beyond partnership to judicial takeover of the legislative power, putting significant pressure even on these justifications. In sum, the major questions doctrine’s novel step in the law of interpretation raises new questions about the limits of substantive canons. It is not enough for the Court and defenders of the doctrine to identify the major questions doctrine as a canon; they must explain why newly recognizing this form of canon is consistent with core theoretical, normative, and constitutional commitments in our legal system
Operationalising Progressive Ideas About Property: Resilient Property, Scale, and Systemic Compromise
Get PDFProperty theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the requirements of social justice is uncontroversial in many European jurisdictions, reflecting their normative foundations in traditions of European social welfarism and Catholic social teaching. In Property Rights and Social Justice: Progressive Property in Action, Walsh foregrounds a system designed for normative hybridity, and evaluates the practical possibility of balancing commitments to social justice within a system that upholds private property rights.
In this Article, we build on Walsh’s account to consider the implications of her insights for scholars seeking to advance progressive ideas about property in the U.S. context across three registers of scale: rhetorical, jurisdictional, and physical. Applying Resilient Property Theory (“RPT ), we reflect on how the dominance of rhetorical methods in the last half-century has foregrounded ideological conflicts between competing normative commitments in U.S. property scholarship, locating scholars seeking to advance progressive ideas about property on a battleground that has been prepared to benefit others. Building on Walsh’s approach of “widening the doctrinal lens,” we argue that RPT offers a new methodological toolkit for advancing progressive ideas about property: by widening the legal lens; widening the contextual lens; and widening the methodological lens. We argue that each of these approaches, as they engage with material and hierarchical scales, offers opportunities to identify and advocate for compromise positions between respect for private property rights and social justice considerations, enabling active political and legal engagement with normative diversity and respecting and taking seriously different legal conceptions of the good
Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons for Native American Jurisdictions
Get PDFThough sovereignty is principally associated with governance over a territory and freedom to act in the international arena, this article examines sovereignty as empowerment. The study tests the applicability to Native American jurisdictions of the experiences of fifteen case study jurisdictions presently associated with the United Kingdom, the Netherlands, and France in shared sovereign relationships. The focus is on the evolution of those relationships and opportunities for development where jurisdictions do not attain full control over their affairs. The case studies examine the relationships from the perspectives of political, economic, and cultural sovereignty. The article further examines the relationships in three dimensions: evolutionary, frictions, and interwoven governance. It concludes with identifying factors of political cohesion, leadership, and entrepreneurship; conditions of good governance; and structures of consultation that allow for leveraging even limited degrees of sovereignty for political, economic, and cultural advancement
All Aboard: Understanding Property Rights in Texas After Texas Central
Get PDFOur forefathers intended the United States Bill of Rights to protect individuals from government overreach. Specifically, the Fifth Amendment, as applied to the States via the Fourteenth Amendment, in part protects individuals from unnecessary takings. Eminent domain authority—its more common name—has long been recognized as a power to be used cautiously and only when necessary. Although most often associated with government exercise, states are permitted to grant this unyielding authority to private entities via their state constitutions and statutes. Despite Texas serving as a beacon for individual property rights, the Texas Supreme Court’s recent decision in Miles v. Texas Central Railroad & Infrastructure, Inc. creates concern for the future of private property rights in Texas. This Note reviews the history of mass transportation in Texas, highlights eminent domain law, analyzes the recent decision, and points out the negative consequences likely to follow
Adequate, but Not Ideal: The U.S. Navy’s Need to Refine Its Administrative Separation Board Procedures
Get PDFWhile the Navy is likely not mandated by the Constitution to edit its procedures for Administrative Separation Boards, it should do so. Service members can be subject to a variety of serious consequences through Administrative Separation Boards, so the processes should be as effective as possible to ensure that they are adequately protected.
To improve the Administrative Separation Board Procedures for the United States Navy, this Comment suggests two policy changes. First, this Comment suggests that the Navy provide more training to Senior Members to ensure they are implementing the existing evidence rule correctly. Second, this Comment suggests that the Navy should add a version of the personal knowledge rule and lay witness opinion rule to the Administrative Separation proceedings. This Comment argues that these suggestions would benefit the Navy even though the Navy is not likely constitutionally mandated to make the changes
Plunging Children into an Unconstitutional Purgatory: Why Texas Should Raise Its Standard of Proof for Placing Children in Foster Care
Get PDFTexas currently allows Child Protective Services to remove children and place them in foster care for up to two years based only on probable cause of abuse or neglect. Removal itself is traumatic for children and foster care puts children at an unconstitutional risk of harm. Allowing courts to put children through the trauma of removal and foster care for years based only on probable cause departs substantially from the national norm for standards of proof, enables Texas to terminate parental rights at a high rate, and subjects children to a risk of harm for which the child welfare system is unable to compensate through other procedural protections. To better prevent children from being unnecessarily plunged into an unconstitutional purgatory in which they must wait to be reunified with their birth families or adopted by new families, Texas should raise its standard of proof for child removals from probable cause to a preponderance of the evidence. Raising the standard of proof to a preponderance of the evidence would better balance the state’s interests in protecting children from harm both in foster care and in their homes
Putting the Lawyer First: Framing Well-Being in Law as an Ethical Dilemma
Get PDFA disturbingly high percentage of our students continue to be unwell. In the most recent and comprehensive survey of law student well-being in 2021, almost 70% of law students responded that, in the past twelve months, they believed they needed to seek help for emotional or mental health problems. Embedded screening tools in the survey suggested that 34% of respondents were clinically depressed and 54% suffered from clinical anxiety. 44% of respondents reported being drunk in the past thirty days, 33% had engaged in binge drinking in the preceding two weeks, and 38% had smoked marijuana in the past twelve months. Over 80% of law students responded that they had suffered at least one traumatic event in their lives, with 70% reporting more than one such event. Nearly 16% of law students said they had thoughts of self-harm in the past twelve months, and 11% reported serious thoughts of killing themselves in the last year. These numbers are troubling and above national averages. And for most of these categories, the percentage of students reporting mental health challenges or problematic behaviors has increased since the last comprehensive study of law students in 2014
Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer
Get PDFThe landscape of college athletics is undergoing a seismic shift with the advent of Name, Image, and Likeness (“NIL”) opportunities for student-athletes. In Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer, Professor Maureen A. Weston examines the evolving terrain, tracing the journey from the National Collegiate Athletic Association’s (“NCAA’s”) rigid amateurism policies to the current era of NIL legislation and its implications. This Article navigates the complex intersection of athlete empowerment, entrepreneurial ventures, and regulatory challenges, shedding light on the multifaceted opportunities and risks for athletes in the burgeoning NIL market.
Delving into the heart of the matter, Weston dissects the dynamics of NIL dealmaking, unveiling the potential windfalls and pitfalls awaiting collegiate student-athletes. From the allure of financial independence to the specter of predatory practices and regulatory ambiguities, the author uncovers the intricate tapestry of concerns surrounding the NIL framework. Drawing on insights from legal, regulatory, and ethical perspectives, Off the Guardrails offers a roadmap for those navigating this uncharted territory, exploring avenues for policy reform, regulatory harmonization, and athlete welfare safeguards in the quest for a balanced and equitable future for student-athlete influencers