Sincere and Strategic Voting Norms on Multimember Courts

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment.\u27 In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court

Strategic Voting on Multimember Courts

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment. In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court

\u27Appropriate\u27 Means-Ends Constraints on Section 5 Powers

With the narrowing of Congress\u27 Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five\u27s legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five\u27s permissible means by holding that Section Five measures must be congruent and proportional to a legitimate end thus defined. This article argues that the means-ends test for Section Five legislation should be the same as the conventional rational relationship test established by McCulloch v. Maryland, not the congruence and proportionality test that the Court has recently adopted. The textual language and the original meaning of the Fourteenth Amendment support this argument, while neither separation of powers nor federalism principles persuasively justify the Court\u27s contrary position. Finally, this article speculates about the significance of Section Five\u27s tightened means-ends scrutiny for other sources of congressional power

Private Remedies for Public Wrongs under Section 5 (Symposium: New Directions in Federalism)

The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress\u27s regulatory authority in general, and Congress\u27s Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5\u27s enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment\u27s substantive provisions themselves, and may only enforce the judiciary\u27s definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means and ends, ruling that [t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. 3 Within the past three years, the Court has applied these standards governing Congress\u27s Section 5 enforcement to the Religious Freedom Restoration Act,4 the Patent and Plant Variety Protection Remedy Clarification Act,5 and the Age Discrimination in Employment Act.6 And just last month, the Court applied these same standards to invalidate the Violence Against Women Act in United States v. Morrison.

Miranda and Some Puzzles of \u27Prophylactic\u27 Rules

Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to overprotect those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.\u27 Such doctrinal rules are typically called prophylactic rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,\u27 in which the Supreme Court implemented the Fifth Amendment\u27s privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings.

State Immunity Waivers for Suits by the United States

The Supreme Court closed this millennium with a virtual celebration of state sovereignty, protecting state authority from the reach of congressional power in several significant ways. In a pair of cases, Seminole Tribe v. Florida1 and Alden v. Maine,2 the Court held that states enjoy a constitutional immunity from being sued without their consent. In Seminole Tribe, the Court opined that the background principle of state sovereign immunity embodied in the Eleventh Amendment 3 protects states from unconsented suits in federal court. In Alden, the Court held that this principle is not merely embodied in the Eleventh Amendment but rather is also rooted in fundamental postulates implicit in the constitutional design, 4 and as such it protects states from unconsented suits in their own state courts as well

Post-Admissions Educational Programming in a Post-Grutter World: A Response to Professor Brown

When asked to provide commentary on another scholar\u27s reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation\u27s law school classrooms. Second, for the same reason, I worry that I will have nothing new and interesting to say. Whether that is the case today I will leave in your capable hands to judge

Message from the Dean

A conversation with Dean Evan H. Caminker; Professor Steven P. Croley named associate dean for academic affairs

How Definitive is Fourth Amendment Textualism?

Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning an “examination of an object or space to uncover information” of their own “persons, houses, papers, and effects.” No more, no less. Such a textual approach generates new doctrinal rules that would replicate Katz’s outcomes in many respects and provide either more or less protection in others