Comments on Campaign Finance Reform

Realistically viewed, the public does not care much about campaign finance. However, the commentators and politicians involved with the campaign process care a great deal. Yet, of those who have expressed any view at all about our topic, few still believe that the existing distinction between expenditures and contributions is satisfactory. I agree with Judge Winter\u27s statement that, from the point of view of the speaker, the distinction between contributions and expenditures is pretty weak. This is because the choice between the two is made by a donor, who looks for the most efficient way to espouse political ideas and pursue her political goals. Accordingly, in his celebrated Buckley brief, Judge Winter correctly argued that if we restrict the manner in which a donor may express herself, it will directly limit the articulation of her political goals. The distinction between contributions and expenditures is becoming even more infirm. Most importantly, the distinction does not deal with the present campaing scheme because it permits both the operation of PACS and the contribution of so-called soft money

Federal Statutory Review Under Section 1983 and the APA

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett, the Court held in Wilder v. Virginia Hospital Association, that the Boren Amendment to the Medicaid Act, which requires states to reimburse health care providers in accordance with rates that are \u27reasonable and adequate to meet the cost ... incurred,\u27 is enforceable by providers in section 1983 actions. Finally, in Dennis v. Higgins, the Court granted certiorari to decide whether dormant commerce clause claims can be maintained under section 1983. Against this background of unfolding opportunities for plaintiffs to vindicate their federal rights, Golden State Transit Corporation v. City of Los Angeles, decided early in the Term, may escape much independent notice even among federal court specialists despite its likely significance

Processes of Constitutional Decisionmaking: Cases and Materials

Authors of constitutional law casebooks traditionally have presented their subject through Supreme Court opinions arranged under the three general groupings of judicial review, distribution of powers (federalism and separation of powers), and individual liberties. This organizational consensus rests upon two widely held and deep beliefs: a basic course in constitutional law should (1) consist of a rigorous and sustained study of substantive doctrine and (2) be undertaken principally through a detailed examination of Supreme Court decisions, albeit supplemented in varying degrees by authors\u27 questions and law review excerpts. Paul Brest\u27s Processes of Constitutional Decisionmaking poses a formidable challenge to this standing wisdom. The book is divided into two parts. Part I concentrates on the process by which constitutional principles are derived by any decisionmaker, whether that person be judge, legislator, or executive official, and Part II addresses the special role of the judiciary in constitutional exegesis. In place of substantive doctrinal exposition, Professor Brest\u27s focus is on questions of process and methodology which cut across the standard substantive topics. Indeed, six of his fifteen chapters are entirely process-oriented; while the remaining nine chapters center on substantive doctrinal exposition within the traditional three groupings, even here the emphasis is upon methodology

Presidential War-Making

The Vietnam war has convinced many persons that the president of the United States claims apparently unlimited power to commit this country to war. Not surprisingly, therefore, considerable interest has focused on the powers that inhere in the presidency. And many critics of the war – those who in other times and in other contexts might have been sympathetic to a spacious conception of presidential power – have concluded that the Vietnam conflict is not only a tragic error, but is the direct result of unconstitutional conduct by the president. I cannot accept this view; at bottom, it seems to me yet another example of the American propensity to substitute for the question of the beneficial use of the powers of government ... the question of their existence. In view of what has already been written, I shall confine myself to the considerations that impress me as controlling. Since my concern is with the constitutional relationship between the president and congress, I shall give no consideration to the consistency of the president\u27s action with American treaty obligations or with international law generally

On Avoiding Avoidance, Agenda Control, and Related Matters

Legal scholars have long posited that, heuristically at least, two basic adjudicatory models – the dispute resolution model and the law declaration model – compete for the Court\u27s affection along a wide spectrum of issues. The former focuses upon judicial resolution of actual disputes between litigants. Historically, that model has been underpinned by a premise, reflected in a wide range of doctrines, that significant barriers rightly exist to judicial review of the constitutionality of governmental conduct. By contrast, the law declaration model focuses on the Court itself not the litigants. Emphasizing the judicial authority to say what the law is, it views any restraints on judicial authority solely in functional terms, terms not as litigant centered. The dispute resolution model is usually treated as formally dominant, followed by an exploration of the inroads made by the law declaration model. Examination of recent, seemingly unrelated, decisions shows that this approach now gets matters pretty much backwards, at least so far as the Court is concerned. Embracing in significant measure the premises of the law declaration model, the Court has sought to expand its hierarchical hegemony to ensure that: (a) It can have the final say when any other court, state or federal, rules on the constitutionality of government conduct; and (b) it will possess wide-ranging agenda-setting freedom to determine what issues are to be (or not to be) decided, irrespective of the wishes of the litigants. The latter development in particular raises troublesome questions about the Court\u27s appropriate role in our polity

The Constitution Goes to Harvard

Doctrinal disorder haunts a generation of Supreme Court decisions construing and applying the strands of the fourteenth amendment. But in a confusion contest between the Court and academic writers on constitutional law, picking a winner would be no simple task. Those of us in the academy, despite our comparatively ample time for reflection, have long resisted discussion of fundamental issues. Professors Tribe and Michelman, two of our ablest writers, illustrate my point in their provocative recent essays on National League of Cities v. Usery. Neither purports to erect more adequate scaffolding for the decision\u27s federalism foundation. Rather, each attempts to transform the decision into one which, in Professor Tribe\u27s words, will contribute to a just constitutional order. That order, in turn, has a centerpiece, a theory of affirmative constitutional claims against the government. I doubt that the persuasiveness of such a theory is enhanced by this reworking of National League of Cities. My interest, however, is in the underlying theory, for which National League of Cities ostensibly becomes both surprising supporting evidence and an attractive, though subtle, showcase

Gideon\u27s Army: Student Soldiers

Ours is a nation that takes great pride in the manner in which it administers justice to its citizens. To us, equal justice under law is not simply hollow rhetoric; it gives expression to some of our most fundamental values, and it proclaims that every man should be treated fairly and equally in the administration of the laws. It is, of course, of no small moment that we hold such an ideal, for a nation invites judgment on how well its performance comports with its professions of faith. In the administration of our laws there is much to which we can justifiably point with pride, but it is a commonplace that there remains a long road to travel before ideal and reality meet. In particular, we recognize that a poor man\u27s lack of resources all too often determines the quality of justice he receives. At the turn of the century Mr. Martin Dooley, the great bartender-social critic, observed, Don\u27t I think a poor man has a chanst in coort? Iv coorse he has. He has the same chanst there that he has outside. He has a splendid, poor man\u27s chanst. While observations of this character are applicable to both civil and criminal cases, they stir especially deep feelings in the latter context, for we profess particular concern that a man not be branded a criminal and deprived of his freedom because of an empty pocketbook. Had Mr. Dooley been at his post on March 18, 1963, I suspect that even he would have heartened. On that day Gideon\u27s trumpet blew, and a bright new banner was unfurled; it proclaimed that in every serious criminal case the government must provide an accused with counsel if he is too poor to hire one. Thus was a significant step taken to narrow the gap between ideal and reality, because, as an eminent judge has noted: Of all the rights that an accused person has, the right to ... counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have. The logistical problems occasioned by the new principle are, however, substantial. Gideon\u27s little regiment had no real difficulty in running up its colors, but it is quite apparent that an army – a very large one – must be raised if the victory is to be a lasting one. My question is simply whether student soldiers may be part of that army

Constructive Trust and Equitable Lien: Status of the Conscious and the Innocent Wrongdoer in Equity

The field of restitution, broadly considered, involves all those situations in which a person who holds property (or has consumed it) must deliver it (or its value) to the claimant in order to prevent the unjust enrichment of the holder. In this sense the ancient common law writs for the recovery of chattels or their value (detinue, replevin, and trover) and land (ejectment) are perceived to be restitutionary in character. A more modem development in the law courts, the allowance of quasi-contractual relief upon the common counts in general assumpsit, rests upon the same basis. In a leading English case, Lord Mansfield states the true basis of the latter obligation. If the defendant be under an obligation, from the ties of natural justice to refund, the law implies a debt, and gives this action founded in the equity of the plaintiff\u27s case, as it were upon a contract (\u27quasi ex contractu\u27) as the Roman law expresses it … This kind of equitable action, to recover back money, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund. Contract sounded in promise but quasi-contract had its roots in the notion of unjust enrichment

Constitutional Fact Review

Bose Corp. v. Consumers Union of United States held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan. Rather, as a matter of federal constitutional law, appellate courts must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity. Thus, in addition to the familiar judicial duty to say what the law is, the first amendment imposes a special duty with respect to law application: both trial and appellate judges must examine the evidence, marshal the relevant adjudicative facts, and then apply the controlling first amendment norms to those facts. Appellate judges may accept the historical facts found in the court below, but they may not defer to the first amendment law application conclusions of even inferior article III judges, no matter how reasonable. Although widely seen as an important victory for the media, Bose did not, as the Supreme Court claimed, present a procedural question of first impression. The independent judgment rule had been clearly stated in Sullivan itself, solidly embedded in the Court\u27s precedents, and applied by the court below. What is significant about Bose is not its result, but its reasoning. Bose proffers a comprehensive rationale for the independent judgment rule, one grounded entirely upon concerns assertedly peculiar to the first amendment. But independent judgment in the first amendment context is merely one example of a systemic issue: the scope of judicial review of the adjudicative facts decisive of constitutional claims. This issue is traditionally raised under the rubric of the constitutional fact doctrine. In a great variety of contexts the pressing question is the extent to which the Constitution itself controls the allocation of functions among the various decisionmakers – appellate and trial judges, juries, administrative agencies – that commonly participate at some stage in the resolution of all types of constitutional claims. Bose provides an appropriate occasion to reconsider the role of appellate courts, particularly the Supreme Court, in constitutional fact review