So Help Me God: Religion and Presidential Oath-Taking

Part of Symposium: The Sound of Legal Thunder: The Chaotic Consequences Of Crushing Constitutional Butterflies

Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement in a Partisan World

For some time, the U.S. Supreme Court has used the standing doctrine to limit federal courts’ authority to entertain private suits aimed at enforcing public norms. In its most recent iteration, TransUnion LLC v. Ramirez, the Court invalidated a federal consumer protection statute on the theory that it wrongly empowered suit by individuals who lacked the requisite injury in fact. Shutting down private litigation was said to advance separation of powers values and to protect the enforcement discretion of a unitary executive branch. The Court characterized private enforcement as a novel feature of the 1970s, a time the Court viewed with evident suspicion as one that inaugurated interest group litigation. In truth, the tradition of interest group enforcement of public norms extends to the earliest days of the republic. During the 1790s, Quakers and other antislavery activists secured federal legislation prohibiting American involvement in the international trade in enslaved people. Like other legislation of that period, the 1794 statute empowered both the federal government and private informers to enforce the law. The ensuing litigation, brought by private informers associated with such groups as the Providence Society for Abolishing the Slave-Trade, led to the forfeiture and sale of the offending vessels in the admiralty courts of Rhode Island and elsewhere. Drawing on federal archives, this Essay recounts a history in which all three branches of the federal government—Congress, courts, and executive branch officials—viewed private litigation through what were called “popular” actions as an uncontroversial tool for enforcing public norms. One finds no objections based on Articles II or III of the Constitution

Article III and the Scottish Enlightenment

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone\u27s famous Commentaries on the Laws of England offers a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior courts of original jurisdiction down below. What\u27s more, the Scottish judiciary operated within a constitutional framework -- the so-called Acts of Union that combined England and Scotland into Great Britain in 1707 -- that protected the role of the supreme court from legislative re-modeling. This Article explores the influence of the Scottish judiciary on the language and structure of Article III. Scotland provided a model for a single supream court and multiple inferior courts, and it defined inferior courts as subordinate to, and subject to the supervisory oversight of, the sole supreme court. Moreover, the Acts of Union entrenched this hierarchical judicial system by limiting Parliament to regulations for the better administration of justice. Practice under this precursor to Article III\u27s Exceptions and Regulations Clause establishes that a supreme court\u27s supervisory authority over inferior courts would survive restrictions on its as-of-right appellate jurisdiction. The Scottish model thus provides important historical support for the scholarly claim that unity, supremacy, and inferiority in Article III operate as textual and structural limits on Congress\u27s jurisdiction-stripping authority

RESOLVING THE QUALIFIED IMMUNITY DILEMMA: CONSTITUTIONAL TORT CLAIMS FOR NOMINAL DAMAGES

Scholars have criticized the Court\u27s qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid the qualified immunity defense by pursuing claims for nominal damages alone. Such nominal claims have a lengthy pedigree, both as a common law analog to the declaratory judgment, and as a remedy for constitutional violations. Because they do not threaten to impose personal liability on official defendants, nominal claims should not give rise to a qualified immunity defense. By seeking only nominal relief, litigants could secure the vindication of their constitutional rights in cases where legal uncertainty might otherwise lead to a dismissal. Such a regime would advance the acknowledged interest in maintaining a vibrant body of constitutional law without threatening to impose ruinous liability on the officials named in the complaint

Judicial Purpose and the Scholarly Process: The Lincoln Mills Case

This Article revisits the debate between Douglas and Frankfurter with a view towards assessing the merits of the two Justices\u27 competing interpretations of section 301. Part I traces the origins of the Taft-Hartley Act and the likely attitudes of Douglas and Frankfurter towards legislation that was meant to curtail the power of trade unions by giving federal courts a larger role in policing industrial conflict. I show that Frankfurter was deeply committed to the notion that federal courts were institutionally unfit to play such a role. Next, I review in greater detail the opinions in the Lincoln Mills case and their reception by labor law scholars, who largely accepted the central claim of Frankfurter\u27s dissent: Congress intended section 301 to solve the procedural problems that employers experienced in attempting to enforce the collective bargain in state court and merely to confer jurisdiction on the federal courts to hear such claims. In Part II of the Article, I conduct a review of the language, structure, and history of the statute. In sharp contrast to the conventional wisdom, such a review discloses an array of evidence supporting Douglas\u27s conclusion that section 301 not only established a federal substantive right to contract enforcement, but also authorized the federal courts to fashion rules to govern actions to enforce collective bargaining agreements on a case-by-case basis. I begin by reviewing the state court enforcement difficulties that led to the statute\u27s passage. I show that most state courts enforced the collective contract, if at all, by relying on the individual contract of hire between employees and the firm. Section 301 addresses the resulting enforcement difficulties by transforming the contract enforcement action from a suit brought to vindicate individual rights into an action to enforce collective or group interests; the statute made both unions and employers responsible for their labor contracts on a collective or entity basis. These substantive changes in labor contract enforcement theory belie any claim that section 301 incorporated state law; indeed, the debates and committee reports assume that violations of labor contracts would present a federal question. Such was the position of the principal sponsor and draftsman of the statute, Senator Robert Taft, who defended section 301 from the precise constitutional attack that Frankfurter later mounted on the statute by expressly rejecting the claim that section 301 contemplated reference to state substantive law. While this evidence suggests that the judicial power recognized in Lincoln Mills rests on more than the historical accident that Justice Douglas had five votes for his reading of section 301, it raises more complex questions. In view of the statute\u27s substantive content, it appears difficult to understand why Douglas failed to offer more cogent support for his interpretation of the statute, why Frankfurter was moved to attack section 30 I\u27s constitutionality, and why the legitimacy of the judicial role the statute envisioned has been so widely questioned. This Article addresses these questions in Part III. It concludes that the conventional understanding of section 301 rests on a conviction, shared by Frankfurter and many students of industrial relations, that the courts should stay out of industrial relations