Grains of Sand or Butterfly Effect: Standing, the Legitimacy of Precedent, and Reflections on \u3cem\u3eHollingsworth\u3c/em\u3e and \u3cem\u3eWindsor\u3c/em\u3e

One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model. In a series of works employing social choice theory, I have presented standing doctrine as furthering a private-rights adjudicatory model. In separate high-profile works, Professors Heather Elliott and Jonathan Siegel have criticized this account, claiming it rests on the “great myth” that the judicial lawmaking is inextricably tied to dispute resolution, with precedent creation merely an incidental byproduct. Instead, Elliott and Siegel contend that the federal judiciary, including especially the Supreme Court, has the primary responsibility of announcing constitutional rules, with case resolutions a justificatory vehicle for performing that task. Siegel further maintains that if, as the social choice model suggests, standing raises the cost to ideological litigants of timing the path of case law to influence developing doctrine, it is no more effective than tossing a “few grains of sand” into the gears of the judicial-lawmaking apparatus. In this Article I respond to these critiques and defend the social choice analysis of standing and the private-rights model on which it rests. First, these and other public-rights scholars fail to appreciate that the private-rights model enhances the normative legitimacy and durability of precedent. If the justification for creating precedent is the present favorable conditions of judicial staffing, then the arguments for respecting the resulting precedent erode when those conditions change, favoring those opposing the precedent. Second, these critiques misread the social choice model of standing to imply that relaxing its limiting conditions undermines the claim that with reasonable assumptions, even if there are no changes in Supreme Court staffing, in the disposition of cases below, in intervening precedent, and in the jurisprudential views of sitting justices, ideological litigants can effect substantive doctrine through favorable case orderings. The opposite is true: Relaxing these limiting conditions has the potential to enhance, not diminish, incentives to manipulate case orderings for maximal doctrinal effect. Third, and finally, expanding the social choice analysis to account for (1) delays in lower federal courts or state courts, (2) the results of changed judicial staffing on the Supreme Court, and (3) the bidirectional nature of constitutional and prudential standing rules more likely generates a butterfly effect, with substantial implications for developing doctrine, than an inconsequential tossing of sand into the works of developing precedent

Private-Rights Litigation and the Normative Foundations of Durable Constitutional Precedent

This chapter advances a simple thesis that runs counter to much public-law scholarship. Holding all else constant, the more difficult, or costly, constitutional rulings are to obtain, the more durable the resulting precedent; conversely, the easier, or cheaper, such rulings are to obtain, the less durable the resulting precedent. Most public-law scholarship implicitly rests on the opposite premise that the relative ease or difficulty of obtaining constitutional rulings should correlate positively, not negatively, with the relative importance or unimportance of the asserted right. Within a public-rights adjudicatory model, important constitutional rights justify relaxing traditional constraints on constitutional decisionmaking, including ripeness, mootness, and, most notably, standing. Conversely, within a private-rights adjudicatory model, judicial rulings, however important, are legitimated by the need to resolve actual cases or controversies presumptively arising from circumstances beyond the claimant’s control. The public-rights model produces an unintended consequence for those seeking durable constitutional precedent. To the extent that the timing of constitutional litigation is driven by the happenstance of ideological sympathies of deciding jurists, the normative justification for affording the resulting precedent durable status is compromised once those conditions change, favoring the other side. By contrast, the private-rights adjudicatory model makes constitutional precedent more costly to obtain on all sides, thereby enhancing the normative foundation for affording precedent durable status. The analysis holds important implications for several notable bodies of law, including the historical status of Brown v. Board of Education; the stare decisis analysis in the jointly authored plurality opinion in the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey; and Supreme Court doctrine concerning agency deference rules

Crops, Guns & Commerce: A Game Theoretical Critique of Gonzales v. Raich

In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion entirely on his own farm, and Lopez v. United States, the controversial 1995 decision, which stuck down the Gun-Free School Zones Act and for the first time in over sixty years imposed limits on the scope of Congress’s Commerce Clause power based upon the underlying subject matter of the regulated activity. Writing for the Lopez majority, Chief Justice Rehnquist had claimed not to disturb the expansive post-New Deal Commerce Clause precedents, but rather to fit all of the cases neatly into three circumscribed categories: the use of channels of interstate commerce; instrumentalities or persons or things traveling in interstate commerce; and economic activities that have a substantial effect on interstate commerce. Significantly, the Lopez Court redefined the third and most important category from its original formulation set out in Wickard. While Wickard had allowed Congressional regulation of local activity, “whatever its nature . . . if it exerts a substantial economic effect on interstate commerce,” Rehnquist instead used “economic” to qualify the activity itself. Following the revised Lopez formulation, the Raich Court inquired whether cultivating, acquiring, and using medical marijuana qualified as a regulable economic activity. Relying upon a dictionary for the proposition that economics refers to “the production, distribution, and consumption of commodities,” Stevens determined that just as the Wickard Court had sustained Congress’s regulation of wheat production, so too, the Raich Court was compelled to sustain Congress’s prohibition of marijuana acquisition, production, and use even if for medical purposes and on the advice of a physician as permitted under state law. This Article traces the Lopez Court’s doctrinal modification, explores its implications, and offers an alternative economic analysis that considers the need for a central coordinating authority to effectuate the Congressional policy enacted pursuant to the Commerce Clause. The analysis reveals the shortcomings of Justice Stevens’s analysis in employing a dictionary definition of economics and of focusing strictly on the nature of the underlying activity to equate Wickard and Raich. Using an analysis that draws instead upon the prisoners’ dilemma and the multiple Nash equilibrium bargaining game, this Article demonstrates that the Court could have reconciled the expansive post-New Deal Commerce Clause cases with the more recent efforts, embodied in Lopez and in Morrison v. United States, to impose meaningful substantive restraints on the scope of Congress’s Commerce Clause powers. And it could have done so while applying Lopez to invalidate the CSA as applied to Respondents’ activities. Most notably, the analysis reveals that Wickard does not represent an extreme example of Congressional Commerce Clause powers. Instead, Wickard relies upon the need for a central authority to curb national wheat outputs as a means of controlling price, and the need for a meaningful signal concerning the level at which the governmentally imposed quota regime will be enforced to avoid the consequence of cheating in undermining the overall pricing scheme. Neither of these concerns, nor any of the other identified concerns that justify the broad post-New Deal exercise of Congressional Commerce Clause powers, properly bear on the facts of Raich

Constitutional Law\u27s Conflicting Premises

Doctrinal inconsistency is constitutional law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable. These doctrinal phenomena share as their root cause dual persistent conflicting premises. Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the selected means risk foisting the judiciary into executive prerogatives. The Commerce Clause empowers Congress to resolve structural coordination challenges among states, or it ensures a discrete regulatory sphere into which Congress may not enter even as needed to ameliorate such coordination challenges. Equal protection protects African Americans against racially discriminatory laws, or it lets such laws stand provided they are nonsubordinating. Similar conflicting premises pervade such high-profile areas as separation of powers and free speech. Beneath each of these, and other, conflicting bodies of caselaw rest two persistent conflicting premises. Identifying these premises, and explaining the dynamic processes that generate them, proves essential to understanding several of constitutional law’s most critical features, including how various bodies of caselaw fit together. This Article provides the first systematic exploration of this phenomenon along with essential insights that explain several of constitutional law’s most notorious anomalies. These include structural constitutionalism, individual rights, and free speech

The New Commerce Clause Doctrine in Game Theoretical Perspective

The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates federalism and separation of powers, concerns rooted in the earliest part of our constitutional history, the arrival of a new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. An analysis of Commerce Clause doctrine reveals that while the Rehnquist Court successfully imposed substantive limits on the scope of this important source of congressional power for the first time in sixty years, that Court was far less successful in developing a coherent normative theory that reconciled its new doctrinal limitations with the traditional broad scope of the post-New Deal Commerce Clause cases. This Article\u27s new game theoretical approach achieves these objectives by offering a compelling normative account of Commerce Clause doctrine and a framework for applying the new methodology to actual cases. In the confirmation hearings for both John Roberts and Samuel Alito, Chairman of the Senate Judiciary Committee Arlen Specter expressed concern that the Supreme Court\u27s new Commerce Clause doctrine, first articulated in United States v. Lopez and later applied in United States v. Morrison, demonstrated disrespect for Congress and for its factfinding processes. In Lopez, Chief Justice Rehnquist, writing for a majority, struck down the Gun-Free School Zones Act, which had made it a federal crime to use or possess a gun within 1000 feet of a public school. The Lopez Court changed the longstanding test governing the scope of Congress\u27s Commerce Clause powers, attributable to the infamous case Wickard v. Filburn. While prior cases had used economic to qualify the effects that the underlying regulated activity had on commerce, the new Commerce Clause doctrine used economic to qualify the activity itself.\u27 The Commerce Clause has long been a source of contention between liberal and conservative jurists in large part because the commerce power is broader in reach than virtually any other delegated congressional power. The Tenth Amendment notwithstanding, congressional regulation under the Commerce Clause has highlighted the tension between a model of limited and delegated federal powers on the one hand and presumed or plenary police state powers on the other. Using the newly devised non- economic activities test, Rehnquist was able to cabin longstanding and expansive Commerce Clause cases into a neatly defined, and seemingly limited, category, thus restoring at least the appearance of limited congressional regulatory powers

Cyclin-dependent kinase control of motile ciliogenesis

Cycling cells maintain centriole number at precisely two per cell in part by limiting their duplication to S phase under the control of the cell cycle machinery. In contrast, postmitotic multiciliated cells (MCCs) uncouple centriole assembly from cell cycle progression and produce hundreds of centrioles in the absence of DNA replication to serve as basal bodies for motile cilia. Although some cell cycle regulators have previously been implicated in motile ciliogenesis, how the cell cycle machinery is employed to amplify centrioles is unclear. We use transgenic mice and primary airway epithelial cell culture to show that Cdk2, the kinase responsible for the G1 to S phase transition, is also required in MCCs to initiate motile ciliogenesis. While Cdk2 is coupled with cyclins E and A2 during cell division, cyclin A1 is required during ciliogenesis, contributing to an alternative regulatory landscape that facilitates centriole amplification without DNA replication