Common Law Elements of the Section 1983 Action

This Article explores the role of the common law in Supreme Court interpretation and application of § 1983, which grants a cause of action for violations of constitutional rights committed under color of any [state] statute, ordinance, regulation, custom or usage. \u27 I argue that the common law has served primarily to narrow the reach of § 1983, and that this is inappropriate in light of the broad statutory language and the absence of good evidence that the enacting Congress intended a narrower application than the statutory language indicates

Municipal Responsibility for Constitutional Torts

The fundamental principle in the law of municipal liability under § 1983 is that municipalities may be held liable only for their own conduct, not for the conduct of municipal employees. Stated somewhat differently, municipalities may not be held vicariously liable for the conduct of municipal employees but rather can be held liable only when municipal policy is the moving force behind the violation. While this principle is simple to state, it has proven difficult to apply

Crisis? Whose Crisis?

Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and American Indians often turned to the federal courts for help, by and large, the Supreme Court of the United States turned them away, refusing their pleas for protection from the sources of their political and social difficulties. The law, as exemplified in Supreme Court decisions, carried on in politically and socially charged times as if nothing was the matter

Congress\u27s (Less) Limited Power to Represent Itself in Court: A Comment on Grove and Devins

In their recent article, Congress’s (Limited) Power to Represent Itself in Court, 99 Cornell L. Rev. 571 (2014) Tara Leigh Grove and Neal Devins make the case against congressional litigation in defense of the constitutionality of federal statutes. They conclude that Congress, or a single House of Congress, may not defend the constitutionality of federal statutes in court even when the Executive Branch has decided not to do so but may litigate only in furtherance of Congress’s investigatory and disciplinary powers. Grove and Devins claim that congressional litigation in support of the constitutionality of federal statutes violates two separate but related features of the Constitution. “First, the Constitution precludes Congress from having a direct role in the implementation of federal law, providing instead that the executive branch ‘shall take Care that the Laws be faithfully executed.’” Second, “defense of federal statutes by the House or the Senate violates an additional constitutional norm: bicameralism.” Grove and Devins argue that bicameralism does not apply to litigation in support of congressional investigations, such as enforcement of subpoenas and punishment of contempt, because of the Constitution’s provision in Article I, section 5, clause 2, granting each House of Congress the power to determine its own rules and punish its members. Although I admire Grove and Devins’s article very much, I find the constitutional analysis that led to their conclusion against congressional litigation in support of the constitutionality of federal statutes unconvincing. In my view, the Take Care Clause imposes a duty on the President, and as such does not impinge on any of Congress’s power. Further, bicameralism does not prevent Congress from litigating in defense of federal statutes because the bicameralism requirement does not apply to litigation. Bicameralism applies only to legislation, and litigation is not legislation. Finally, Congress’s power to litigate to support its information gathering derives from its general legislative power and not from its power to make internal procedural rules

The Role of the Courts in Creating Racial Identity in Early New Orleans

Reviewing Kenneth R. Aslakson, Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (New York University Press 2014)

Congressional Administration

In recent years, at least since President Reagan\u27s precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress\u27s involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress\u27s role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition that Congress gets involved when it is worth it in terms of gaining political support from oversight activities. The police patrol/fire alarm model of oversight predicts that Members of Congress have the strongest incentive to get involved when a constituent pulls an alarm. However, the high volume of oversight that is not responsive to particular alarms contradicts this prediction. Congress routinely engages in a very high volume of oversight, both formal and informal. Formal oversight includes more precise legislation, appropriations riders, earmarked funding, certification requirements and Senate advice and consent on appointments. Informal oversight includes hearings, direct communication with agencies, influence over appointments, investigations, and casework. This paper sets out and analyzes the various forms of formal and informal oversight and then examines key doctrines of administrative law, namely the nondelegation doctrine, Chevron and Vermont Yankee, and asks whether our understanding of those doctrines is affected by the fact of constant and consistent congressional involvement in and oversight of the administrative process