Federalism in the Taft Court Era: Can It Be “Revived”?

This Article analyzes the Supreme Court\u27s view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as reviving pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the twentieth century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of the ideal of dual sovereignty also significantly undercut state power, because it invited the pre-New Deal Court to prohibit states from regulating the exclusively federal area of interstate commerce. For these reasons the modern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as separated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre-New Deal Court. Second, the pre-New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre-New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never understood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre-New Deal Court\u27s common law authority was regarded as even more fundamental than Congress\u27s claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court\u27s authority to impose structural limitations on congressional power was also profoundly altered. Third, the pre-New Deal Court, like the country generally, regarded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic self-government. Federalism was typically conceived as the problem of reconciling centralization with self-government. Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American political culture when the crisis of the New Deal legitimated the national government\u27s authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court\u27s common law authority, this transformation of Congress\u27s legitimacy undercut the Court\u27s ability to second-guess Congress\u27s vision of national priorities when reviewing the limits of congressional power. Fourth, the pre-New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural principles, like the limits of congressional power, in terms of the individual rights affected by federal legislation. Because the Lochnerism of the pre-New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sensitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply distinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre-New Deal Lochnerism. The revival of pre-New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antagonistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsupported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process

Marshall as a Judge

Marshall is a towering and inspirational figure in the history of American constitutional law. He changed American life forever and unquestionably for the better. But the contemporary significance of Marshall’s legacy is also, in ways that challenge present practices and beliefs, ambiguous

Data Privacy and Dignitary Privacy: Google Spain, the Right To Be Forgotten, and the Construction of the Public Sphere

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming the “public opinion” that is essential for democratic self-governance. As the rise of American newspapers in the nineteenth and twentieth centuries demonstrates, the press underwrites the public sphere by creating a structure of communication both responsive to public curiosity and independent of the content of any particular news story. Google, even though it is not itself an author, sustains the contemporary virtual public sphere by creating an analogous structure of communication. With regard to privacy values, EU law, like the laws of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by the fair information practices contained in the Directive. These practices regulate the processing of personal information to ensure (among other things) that such information is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it seeks to endow persons with “control” over their personal data. Data subjects need not demonstrate harm in order to establish violations of data privacy. The second form of privacy recognized by EU law is dignitary privacy. Article 7 of the Charter of Fundamental Rights of the European Union protects the dignity of persons by regulating inappropriate communications that threaten to degrade, humiliate, or mortify them. Dignitary privacy follows a normative logic designed to prevent harm to personality caused by the violation of civility rules. There are the same privacy values as those safeguarded by the American tort of public disclosure of private facts. Throughout the world, courts protect dignitary privacy by balancing the harm that a communication may cause to personality against legitimate public interests in the communication. The instrumental logic of data privacy is inapplicable to public discourse, which is why the Directive contains derogations for journalistic activities. The communicative action characteristic of the public sphere is made up of intersubjective dialogue, which is antithetical both to the instrumental rationality of data privacy and to its aspiration to ensure individual control of personal information. Because the Google search engine underwrites the public sphere in which public discourse takes place, Google Spain should not have applied fair information practices to Google searches. But the Google Spain opinion also invokes Article 7, and in the end the decision creates doctrinal rules that are roughly approximate to those used to protect dignitary privacy. The Google Spain opinion is thus deeply confused about the kind of privacy it wishes to protect. It is impossible to ascertain whether the decision seeks to protect data privacy or dignitary privacy. Google Spain is ultimately pushed in the direction of dignitary privacy because data privacy is incompatible with public discourse, whereas dignitary privacy may be reconciled with the requirements of public discourse. Insofar as freedom of expression is valued because it fosters democratic self-government, public discourse cannot serve as an effective instrument of self-determination without a modicum of civility. Yet the Google Spain decision recognizes dignitary privacy only in a rudimentary and unsatisfactory way. If it had more clearly focused on the requirements of dignitary privacy, Google Spain would not so sharply have distinguished Google links from the underlying websites to which they refer. Google Spain would not have blithely outsourced the enforcement of the right to be forgotten to a private corporation like Google

Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Insight of Paul Mishkin

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former. Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this persistent but necessary tension, which he conceived almost as a form of antinomy. In this article we pay tribute to Mishkin\u27s quest for understanding. We argue that the tension identified by Mishkin is significant and unavoidable, but that it is also exaggerated because it presupposes an unduly stringent separation between professional reason and popular values. In our view the law/politics distinction is both real and suffused throughout with ambiguity and uncertainty. The existence of the law/politics distinction creates the possibility of the rule of law, but the ragged and blurred boundaries of that distinction vivify the law by infusing it with the commitments and ideals of those whom the law purports to govern

Why Bother with Academic Freedom?

It is a wicked pleasure to read Versions of Academic Freedom. The field of academic freedom is presently rife with controversy and debate. There are endless animated controversies about its meaning and requirements. Much of the debate is sheer foolishness, and no one is better at exposing its absurdity than Stanley Fish. His book is a page-turner, filled with fresh new material and forceful, evocative analysis. It is both entertaining and educational. I should say at the outset that I largely agree with the thrust of Fish\u27s thesis. Like Fish, I believe that academic freedom exists to protect the ability of academics to pursue their professional tasks. Academic freedom does not concern human freedom generally, but rather the autonomy of the scholarly profession. This simple premise is sufficient to cut through much of the bluster that envelops so many modern disputes about academic freedom. Although Versions of Academic Freedom is an able and reliable guide to the current landscape of academic freedom, I know that I have been invited to this symposium not merely to praise Fish, but also to engage with him. And to that end I shall make three simple points about salient limitations in Fish\u27s analysis

Understanding the First Amendment

It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible

Compelled Commercial Speech

It is a pleasure to deliver the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law. I counted Ed Baker as a good friend and a precious colleague. I sought out his views and treasured his advice. His work on the First Amendment, and most especially on the media, is of the first rank. Its prescience, range, and integrity exemplify the very best in American legal scholarship. I mourn Ed Baker\u27s untimely demise, and I miss his companionship. Ed was most famous for his claim that First Amendment rights protect those fundamental aspects of individual liberty and choice that involve using speech to order and create the world in a desired way and as a tool for understanding and communicating about that world in ways individuals may find important. This view led Ed to conclude that the First Amendment should not extend any protection to what is now labeled commercial speech --which consists roughly of those communications that accompany the buying and selling of goods in a marketplace

Law and Cultural Conflict

The relationship between law and cultural conflict is a subject that is relevant to numerous contemporary disagreements about the substance of rights. The Article does not attempt to intervene into these disagreements, but instead to construct a common framework of analysis that might facilitate constructive dialogue among those who would otherwise disagree. The framework offers three dimensions in which the relationship of law to cultural conflict might be assessed. The first dimension concerns the sociological relationship between law and culture. The simplest model of this relationship, which the Article calls the Devlin model, assumes that law is the expression of a coherent antecedent culture that is the ultimate source of society\u27s identity and authority. This view of law underlies many contemporary formulations of constitutional and common law, as well as various claims to national self-determination and multiculturalism. The Devlin model is radically oversimplified, however, because it undertheorizes both law and culture. It fails to recognize the many ways in which law cannot only enforce an antecedent culture, but also constitute that culture, as well as displace it in the name of instrumental rationality. The Devlin model also fails to recognize that a society\u27s culture is typically neither stable, coherent nor singular. The Article offers a typology of the various relationships that law can assume with cultural contestation and heterogeneity. The second dimension concerns the form of legal intervention. Different forms of interventions place the law in different relationships with cultural conflict. Legislation differs from adjudication; criminal law differs from administration regulation. The Article uses the case of Romer v. Evans to explore how the fact of cultural conflict can affect the creation of judicially created constitutional rights. The dialectic between cultural conflict and judicially enforced constitutional rights should primarily be understood as a matter addressed by the substantive jurisprudence of constitutional law. The third dimension concerns the nature of legal rights. Some rights, like those protected by the First Amendment, promote cultural diversity in ways that other rights, like those protected by the Equal Protection Clause do not. The first kind of rights are hospitable to cultural conflict; the second are not. The distinction turns on the difference between rights that understand cultural values as instantiated by particular forms of social relationships, and rights that understand the prevention of state regulation as a necessary but not sufficient condition for the realization of cultural values. The Article parses the various factors that are relevant for determining which kinds of rights the law ought to implement