Orders Without Law

This Review has two goals. The book, by design, largely steers clear of concrete reform proposals; its object is to trace the ways that the Court’s practices around emergency applications shifted over the Trump years and to urge that these developments warrant critical attention (pp. 24–25). My first goal, then, is to propose some reforms. These proposals orbit around a central contention: Any critique of the shadow docket and any proposed solution must depend, explicitly or implicitly, on a theory of the Court — its role in the constitutional order and how it can best serve that role. As a descriptive matter, the Court’s present role was articulated by Taft and realized by the Judges’ Bill; it sits primarily to declare broadly important legal norms. The emergency docket should be understood as an adjunct to that primary function, not as an alternative route to fulfill it. My second goal is to suggest that, in some respects, Vladeck’s critique of the shadow docket does not go far enough. One of the challenges in assessing the “shadow docket” is that it is not a single thing, but an amalgam of varied practices not susceptible to a uniform prescription. Vladeck’s focus is the emergency docket, and his claim, at bottom, is that the merits docket — with its signed opinions, reasoned orders, oral argument, and so on — is the paradigm of regularity to which the Court’s emergency docket should aspire. At times, though, Vladeck gestures toward a more radical thesis: Since the Judges’ Bill, it is the shadow docket — in particular, certiorari — that has really defined the Court’s institutional identity, not the merits docket (p. 276). Everything the Court does on the merits docket happens only because of a prior shadow docket decision. And when it makes those shadow decisions, the Court has virtually unbounded discretion. The merits docket, in other words, is a small, manicured island on a vast sea of discretion. I close by suggesting that public law theory often fails to confront this stubborn institutional fact. If that is right, the debate about the shadow docket will and should long outlive the present controversy over standards for emergency relief

Courts in Conversation

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that it so ambitiously describes. The present symposium is a testament and a preview. My symposium essay will isolate and attend to one voice in the constitutional polyphony: the judiciary. A remarkable transformation takes place over the course of Amar’s narrative. In the beginning, the institutional voice of the judiciary is scarcely audible. The courts’ contributions to the constitutional conversation pale in comparison to the much more significant contributions of Presidents, cabinet officials, members of Congress, pamphleteers, litigators, and citizens. By the end of Amar’s story, however, the Marshall Court has become a major voice in America’s constitutional conversation. How did that happen? What accounts for this dramatic change in the relative volume of the judicial voice? The passage from judicial inaudibility to judicial preeminence is a complex sociopolitical event that cannot be reduced to a single cause, and that is not my intention here. But this essay will suggest that a series of subtle, and now largely forgotten, institutional changes that occurred in the early decades of the Supreme Court’s existence laid the groundwork for the dramatic growth in the Court’s importance on the constitutional scene across that same period. And that growth, of course, has only continued: By the twenty-first century the Supreme Court “has by a very large margin the loudest institutional voice in constitutional debate.” These early institutional choices, then, though subtle, have powerfully defined the character of our constitutional conversation ever since. After briefly discussing the judiciary in the colonial period, this essay begins with two interconnected developments between the Revolution and the ratification of the Constitution that bolstered the idea of judicial review: The appreciation, at least among elites, of the danger of unrestrained legislative power, and the advent of written constitutions with special democratic authority that could serve as sources of justiciable limits on government power. This essay then turns to the period after the Constitution went into effect and the federal judiciary materialized, when the early Supreme Court made a series of critical institutional choices to define and strengthen its voice. In particular, the Justices separated themselves from the executive branch, they tamped down on extracurricular partisan activities, they started to coalesce around unified “opinions of the Court,” and they enlisted Congress to create an official reporter. Blended together, these reforms enabled the Supreme Court to speak in a powerful and distinct institutional voice. On top of these reforms, Justice Joseph Story’s appointment to a professorship at the fledgling Harvard Law School cemented a close connection between the courts and the intellectual study of law that continues to this day, further enhancing the Court’s prestige and influence. In all, these institutional reforms enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation

Orders Without Law

A review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck

Standing Between Private Parties

Standing is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is “whether the plaintiff is the proper party” to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the “v.” It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is “built” on the “single basic idea” of “the separation of powers.” When a government official is sued, a particular structural problem arises: If a court entertains the suit, it will be put in the position of supervising another branch of the government. And without some sort of injury requirement, the political branches might be subjected to continuous judicial oversight. As a historical matter, Article III standing doctrine developed primarily in this context. But the structural concern prompted by that context is absent when one private party sues another private party. There is no prospect that such a suit will yield a remedy against a government official. The suit may, of course, raise other constitutional problems, but those other problems should not be shoehorned into standing — an avowedly transsubstantive jurisdictional doctrine that derives from Article III. This theoretical claim is bolstered by a striking fact: Until 2020, the Supreme Court had never dismissed a case for lack of Article III standing when the defendant was a private party on the ground that the injury alleged was insufficient. And, as it followed this pattern, the Court was notably more generous in recognizing standing in cases against private parties than in cases against governmental parties. But the Court recently broke this pattern. In two closely divided opinions, the Court held — for the first time — that private parties could not sue other private parties because the injuries alleged were inadequate. Congress’s attempt to authorize those suits thus violated Article III. This paper critiques those decisions, situates them in the broader arc of the development of standing law, and surveys the prospects for doctrinal reconstruction. To do so, it proposes a novel framework to return the law of standing to its historical and conceptual moorings. Under that framework, standing doctrine should not limit Congress’s (or the states’) power to authorize lawsuits between private parties in federal court

Dynamic response functions and helical gaps in interacting Rashba nanowires with and without magnetic fields

A partially gapped spectrum due to the application of a magnetic field is one of the main probes of Rashba spin-orbit coupling in nanowires. Such a "helical gap" manifests itself in the linear conductance, as well as in dynamic response functions such as the spectral function, the structure factor, or the tunnelling density of states. In this paper, we investigate theoretically the signature of the helical gap in these observables with a particular focus on the interplay between Rashba spin-orbit coupling and electron-electron interactions. We show that in a quasi-one-dimensional wire, interactions can open a helical gap even without magnetic field. We calculate the dynamic response functions using bosonization, a renormalization group analysis, and the exact form factors of the emerging sine-Gordon model. For special interaction strengths, we verify our results by refermionization. We show how the two types of helical gaps, caused by magnetic fields or interactions, can be distinguished in experiments.Comment: 15 pages, 7 figures, v2 refs adde

Detecting nonlocal Cooper pair entanglement by optical Bell inequality violation

Based on the Bardeen Cooper Schrieffer (BCS) theory of superconductivity, the coherent splitting of Cooper pairs from a superconductor to two spatially separated quantum dots has been predicted to generate nonlocal pairs of entangled electrons. In order to test this hypothesis, we propose a scheme to transfer the spin state of a split Cooper pair onto the polarization state of a pair of optical photons. We show that the produced photon pairs can be used to violate a Bell inequality, unambiguously demonstrating the entanglement of the split Cooper pairs.Comment: 11 pages, 9 figures, v3 with added reference

International Labor Migration, Economic Growth and Labor Markets – The Current State of Affairs

Even though European labor markets are characterized by high average unemployment, there is a shortage of high-skilled labor, leading many European economists to argue for an immigration policy directed at actively recruiting highly qualified workers from abroad. It has further been argued that an immigration policy that is tailored to attract young and economically successful migrants can alleviate some of the demographic burden associated with an aging population.We embed this discussion into a systematic classification of economic migration research according to its major conceptual and applied questions. The state of theoretical and empirical research on the migration decision, the literature on the economic performance of immigrants and their economic impact is reviewed briefly, proceeding along the lines of a clear conceptual framework. In addition, the paper discusses expectations on future migration flows and the policy options of immigration countries for dealing with these flows.Immigration, European labor markets, Immigration policy

Disorder-driven exceptional lines and Fermi ribbons in tilted nodal-line semimetals

We consider the impact of disorder on the spectrum of three-dimensional nodal-line semimetals. We show that the combination of disorder and a tilted spectrum naturally leads to a non-Hermitian self-energy contribution that can split a nodal line into a pair of exceptional lines. These exceptional lines form the boundary of an open and orientable bulk Fermi ribbon in reciprocal space on which the energy gap vanishes. We find that the orientation and shape of such a disorder-induced bulk Fermi ribbon is controlled by the tilt direction and the disorder properties, which can also be exploited to realize a twisted bulk Fermi ribbon with nontrivial winding number. Our results put forward a paradigm for the exploration of non-Hermitian topological phases of matter.Comment: Main Text (6 pages, 2 figures) + Supplemental Material (7 pages, 1 figure

The Puzzles and Possibilities of Article V

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but at least in the text itself we assume we can find some objective common ground. This paper calls into question each piece of this standard picture of Article V. Neither the language nor the law of Article V supplies a determinate answer to a long list of fundamental puzzles about the amendment process. Legally questionable amendments have not been the exception throughout U.S. history; they have been the norm. After detailing these descriptive claims, the paper explores their doctrinal and theoretical implications. Appreciating the full extent of Article V’s ongoing ambiguity, we suggest, counsels a new approach to judging the validity of contested amendments, undermines some of the premises of originalism and textualism, and helps us to see new possibilities for constitutional change. Because the success or failure of attempted amendments turns out not to be exclusively or even primarily a function of following the rules laid out in the canonical document, all constitutional amending in an important sense takes place outside Article V