Rethinking Legal Conservatism

This is the time for us to think through whether an entity as august as the Federalist Society should embrace a move toward a constitutional conservatism. It strikes me as dangerous in terms of the underlying issues, but more importantly, as a step away from the fundamental insight that the Federalist Society had, which was that judges should be restrained because they lack the democratic pedigree of the political branches. There should be an impulse of judicial restraint, and, unless something is clearly unconstitutional, courts should not be mucking around with legislation and declaring it unconstitutional, no matter how novel it may be

Remarks by Acting Solicitor General Neal Katyal

Few have served the public with greater distinction than Justice John Paul Stevens. That service began with Justice Stevens\u27s work as a naval intelligence officer during World War II, continued through his five years of service as a judge on the Seventh Circuit, and culminated with thirty-four and a half years on the United States Supreme Court. It also included a twenty-six-day stint in September 2005, during which Justice Stevens served as the Acting Chief Justice of the United States

The Solicitor General and Confession of Error

Confessions of error have a long history. From the very beginning of the Solicitor General\u27s position, we have had confessions of error. All Solicitors General-it doesn\u27t matter whether they are appointed by a Republican or a Democrat-have confessed error, roughly at the pace of two to three times per Supreme Court term

Sunsetting Judicial Opinions

Contemporary constitutional law, in its quest for judicial restraint, has primarily focused on the how of judging - what interpretive methods will constrain the decisionmaker? This Article, by contrast, focuses on the when - if there are reasons to think that today\u27s judicial decisions might later prove to be problematic, then are there methods that alter the timing of those decisions\u27 impact to produce better outcomes? This Article outlines one new method for judicial decisionmaking in the post-9/11 world. Informed by pervasive legislative practices, I contend that the Supreme Court should prospectively declare that some of its national security opinions will sunset, meaning that they will lapse as binding precedent

Stochastic Constraint

This essay reviews Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith (2012). With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush\u27s tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though the modern wartime Executive may disregard traditional limits on presidential power and attempt to act unilaterally, new checks from an aggressive press, a watchful and technologically enabled public, and the legalization of warfare combine to constrain the executive branch. Goldsmith argues that this system is the type of reciprocal restraint of which our Founders would have approved (p. 243). Goldsmith\u27s claim ultimately boils down to one about how presidential constraint arises from a stochastic melange produced by these newly empowered actors. But in his analysis of the constraint imposed on the modern Executive by this new system of checks and balances, Goldsmith fails to account for the values served by good process. Just as with a student\u27s four-page exam (which might reach a correct result but probably will not), the path by which the Executive is constrained matters, because it will significantly affect the substantive quality and sustainability of that end result. Goldsmith\u27s new system of accountability relies on a combination of government leaks and self-checking out of fear of reprisal, whereas the traditional system trusts [a]mbition ... to counteract ambition. The latter system--the one envisioned by the Founders--has significantly fewer side effects attached to the process of checking the Executive. In this Review, the author argues that the particular process employed to constrain the Executive has consequences beyond the mere fact of achieving some level of constraint, and the new system of checks and balances has more costs associated with it than the traditional, constitutionally envisioned system, which primarily relies on government officials. In the end, many different methods might be used to achieve constraint, broadly conceived, but the process chosen to reach that constraint has substantive implications. Part I discusses the relationship between the process used to check the Executive and the substance of the constraints imposed. It contends that, just as the Coase Theorem predicts, the initial set of entitlements will strongly influence the eventual result, and that Coasean analysis provides a helpful frame through which to assess Goldsmith\u27s claim that the new constraints he identifies can substitute for Madisonian checks and balances. Part II analyzes Goldsmith\u27s speculation that the modern cycle of permission and constraint is likely to continue, and suggests that future inquiry should examine whether particular policy solutions could be developed, in advance of the next crisis, that might break this cycle

Equality in the War on Terror

Today, much public attention and litigation in the wake of the government\u27s response to the September 11, 2001 attacks centers on one or another claims about the government\u27s substantive illegality (such as claims based on the Due Process Clause). This is a mistake. Instead of focusing on the ultimate individual liberty questions, challenges should first focus on equality. Since the terrorist attacks, the government has repeatedly singled out aliens for special disfavor. For example, the Military Commissions Act blatantly discriminates against aliens - shunting the 20 million green-card holders and 5 billion people across the planet into a different, and far inferior, trial procedure than what American citizens face. Since at least the ratification of the Fourteenth Amendment\u27s equality guarantee, such legislation has never been placed in the United States Code. The equality challenges are the next big thing in the war on terror. While discrimination by the federal government against aliens might be justified when it is handing out government benefits, it is not appropriate when deciding whether someone can be put before a tribunal with the power to dispense the most awesome powers of government, such as life imprisonment and the death penalty. When legislation singles out only powerless aliens, moreover, the standard checks on government abuse, such as political accountability, fail to operate. The result is not only that the legislation runs afoul of the Constitution\u27s guarantee of equal protection, it also eliminates the legislation from the zone of deference traditionally due to the political branches

Disruptive Technologies and the Law

In the past two decades, the concept of disruptive technology has gone from theory, to buzz word, to the captivation of the popular imagination. Disruptive innovation goes beyond improving existing products; it seeks to tap unforeseen markets, create products to solve problems consumers don\u27t know that they have, and ultimately to change the face of industry. We are all the beneficiaries of disruption. Every smartphone carrying, MP3-listening, Netflix-watching consumer is taking advantage of technologies once unimaginable, but that now feel indispensable. Silicon Valley\u27s pursuit of disruption will continue to benefit and delight a world of consumers. But where disruption may once have been the secondary result of innovation, disruption has become a goal in and of itself. Today, I want to urge a cautionary note: The tech community\u27s solipsistic focus on disruption, to the exclusion of human and legal values, can be problematic. We can see these potential problems in the development of three areas: mass surveillance, 3D printing, and driverless cars