How \u3ci\u3eNFIB v. Sebelius\u3c/i\u3e Affects the Constitutional Gestalt

The thesis of this essay is that the most important legal effects of the Supreme Court\u27s decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty). After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement. This is a revised draft and replaces the draft of October 16, 2012, which is now on file with the author

Hypotheses and their dynamics in legal argumentation

We investigate some legal interpretation techniques from the viewpoint of the Argentinian jurisprudence. This allows the proposal of a logical framework –from a computer science perspective– for modeling such specific reasoning techniques towards an appropriate construction of legal arguments. Afterwards, we study the usage of assumptions towards construction of hypotheses. This is proposed in the dynamic context of legal procedures, where the referred argumentation framework evolves as part of the investigation instance prior to the trial. We propose belief revision operators to handle such dynamics, preserving a coherent behavior with regards to the legal interpretation used. Abduction is finally proposed to construct systematic hypothesization, with the objective to bring semi-automatic recommendations to push forward the investigation of a legal case

Making the Right Gamble: The Odds On Probable Cause

Again, is there probable cause to detain, arrest or search each passenger? Is there probable cause to search each passenger\u27s luggage, their autos parked at the airport and their residences? This article seeks the answer to the hypotheticals in sources ranging from the judiciary\u27s own pronouncements on probable cause to linguistics, history mathematics and cognitive psychology

How NFIB v. Sebelius Affects the Constitutional Gestalt

This Essay examines the effects of the Supreme Court‘s decision in National Federation of Independent Business v. Sebelius, in which the Court addressed the constitutionality of the Affordable Care Act. More precisely, what effects will NFIB have on the law—especially constitutional law? We can divide these effects into two general categories, direct and indirect. Direct legal effects are those created by and through legal norms. They include the operation of legal orders (the mandate in an appellate opinion) and legal rules (stare decisis and the doctrine of law of the case). Indirect legal effects are mediated by causal processes that are not themselves instantiations of legal rules. For example, if a legal decision affects politics, and then the political change affects the law, that change would constitute an indirect legal effect

Substitute Arguments in Constitutional Law

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument

Burdening Substantial Burdens

In Hobby Lobby v. Burwell, the Supreme Court held that religious believers could establish that their free exercise was substantially burdened just so long as they—or the corporation they had formed—believed that it was. This highly deferential stance paved the way for yet another challenge to the contraceptive mandate. In Zubik, religious organizations (ROs) contend that it is not just subsidization of contraception that can make an employer complicit in contraception use. Instead, even filling out a form registering one’s objection to the mandate can do so. The government has responded by vigorously arguing that filling out a form cannot reasonably be construed as a substantial burden. One can read the Court’s per curiam opinion as an implicit endorsement of the RO’s claim that the accommodation process substantially burdens their free exercise. Nonetheless, without a decision on the merits, it is not clear just why the ROs should prevail on the substantial burden question. Nor do the parties’ submissions provide the needed clarity as the arguments on each side are irredeemably flawed. Or so at any rate I argue here. I nonetheless believe that there is good reason for ROs to contest the accommodation process, as it requires that the ROs ratify contraceptive use, in contravention of their religious beliefs. On these grounds, I find that the existing process imposes a substantial burden on religious exercise. But I also take seriously the rationale behind the contraceptive mandate and I conclude by seeking to vindicate women’s rights to free contraception in ways that the ROs should find congenial

Making Sense of Judicial Sensemaking: A Study of Rhetorical Discursive Interaction at the Supreme Court of the United States.

This dissertation engages previous research in political science and psychology by arguing for the importance of oral arguments from a communication perspective, examining justices' rhetorical discursive interaction in oral arguments, introducing Sensemaking as a new model of judicial decision making, and discussing the legal and cultural impact of justices' rhetorical discursive interaction in Morse v. Frederick, Kennedy v. Louisiana, and District of Columbia v. Heller. In contrast to the aggregate behavioral models and longitudinal studies conducted by political scientists and psychologists, this study examines these specific cases in order to gauge each justice's individual interaction in oral argument and to determine how certain justices may have controlled the discursive flow of information within oral arguments, which in turn may have influenced the Court's decision making ability. The dissertation begins with an introduction, providing an overview of the development and study of legal rhetoric from the Greeks to present day. A review of prior literature in law, political science, and psychology displays how fields outside of communication view oral arguments and reveals where communication may provide valuable contributions to the study of Supreme Court oral arguments. Theoretical and methodological approaches adopted for the study of oral arguments are discussed. Analysis within the dissertation begins with an overview of the inherent complexity found within oral arguments and applies the previously discussed theoretical and methodological approaches to the case of Morse v. Frederick as a means of determining theoretical and methodological validity. Following analysis of Morse v. Frederick, a second case, Kennedy v. Louisiana is analyzed to determine if similar results will occur. Final consideration is given to a third case, District of Columbia v. Heller, to understand whether justices' behavior may deviate in more socially and politically sensitive cases. The dissertation concludes with suggestions for lawyers and judges based upon this study's findings and makes recommendations to scholars for further areas of research

Getting Physical: Excluding Injury Awards under the New Section 104(a)(2)

This article analyzes the 1996 amendments to section 104(a)(2) of the Internal Revenue Code. The authors argue that while section 104(a)(2) was in need of remedy, the remedy chosen is both insupportable from the standpoint of tax policy and problematic in terms of administrability. Part II of the article traces the recent history of the statute’s judicial construction. Part III discusses the provisions of the 1996 amendments. Part IV demonstrates the impact of the 1996 amendments on dignitary torts and highlights policy and interpretational problems associated with the amended provision. The article concludes with a proposal for a better remedy