Reforming the Contested Convention: Rethinking the Presidential Nomination Process

The presidential nomination process could be substantially improved through a few minor tweaks that would reduce unnecessary uncertainty, bolster its democratic underpinnings, and improve the connections among its various components. First, certain fundamental rules governing national conventions should be determined well in advance of the presidential nominating process, before any primaries or caucuses are held or delegates selected, and not be subject to change or suspension at the convention itself. Second, parties should enhance the democratic moorings of their national conventions by requiring presidential candidates to win a greater number of presidential preference votes to be placed into nomination. Third, state parties should tie the various components of the presidential nomination process more closely together by adopting a blend of the Democratic and Republican Parties’ current approaches. When a candidate is allotted national convention delegates based on the results of a presidential preference vote, the candidate should have a voice in selecting those delegates, and those delegates in turn should be bound to vote for that candidate, at least during the first round of voting at the national convention

Public Law at the Cathedral: Enjoining the Government

Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court’s ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed’s Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court. This Article challenges this prevailing understanding, including past attempts to apply the Cathedral framework to constitutional rights. It argues that a constitutional or statutory right receives the greatest available level of protection when it is secured by an injunction. A court’s decision about whether to issue an injunction is likely to make the biggest difference in protecting a public law entitlement where: (i) high transaction costs otherwise may deter or prevent rightholders from enforcing their rights (such as where administrative exhaustion requirements exist or the threatened violation is “fast moving”); or (ii) the benefits of violating the right will accrue primarily to politically influential people or groups, while violations are inflicted primarily on members of unorganized or politically weak groups. Because of the importance of injunctions in public law cases, procedural, jurisdictional, and other related rules should be reformed to reduce the unique obstacles that hinder plaintiffs in such cases from obtaining injunctive relief, and make injunctions available on a wider, more consistent, and substantively defensible basis. Moreover, the Cathedral framework should be modified as it applies to public law cases, to more accurately reflect the important distinction between actually being protected by an injunction (“complete property-rule” protection), and merely having a substantial likelihood of being able to obtain one (“potential property-rule” protection)

Litigating Imperfect Solutions: State Constitutional Claims in Federal Court

1 online resource (PDF, page 401-430)Book review: 51 imperfect solutions: states and the making of American constitutional law. Jeffrey S. Sutton. New York, N.Y.: Oxford University Press, 2018. Pp. xi, 278. Reviewed by Michael T. Morle

The Independent State Legislature Doctrine

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years that followed. During the 2020 presidential election cycle, however, several Justices issued opinions demonstrating an interest in recognizing and enforcing the doctrine. This Article contends that the doctrine is best understood as a general principle that gives rise to a range of different potential corollaries, each of which is supported by somewhat differing lines of precedent, reasoning, historical practice, and prudential considerations. Each of these potential implications of the doctrine may be assessed separately from the others; the doctrine need not be accepted or repudiated wholesale. The fact that a court or commentator may accept or reject certain applications of the doctrine does not mean that other aspects, or the doctrine as a whole, must be similarly embraced or jettisoned. This Article unpacks the independent state legislature doctrine, exploring and offering a normative perspective on each of its possible corollaries

The Federal Equity Power

Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as injunctions, even in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. Equity should not be understood as a single, independent body of principles that a federal court must apply in all cases that come before it. Rather, a federal court’s power to impose an equitable remedy stems, if at all, from the legal authority that establishes the underlying right. For state-law claims, a federal court must apply state statutes and precedents—not uniform, centrally devised federal standards—to determine the availability of equitable relief. The manner in which state-created rights are protected is as much a matter of substantive state policy as a state’s initial creation and allocation of those rights. When adjudicating a federal statutory claim, the underlying federal statute itself governs the availability of equitable relief; a federal court may presume Congress intended that traditional equitable principles apply as a matter of statutory interpretation, unless the statute’s text or legislative history contains a clear statement to the contrary. Finally, for constitutional claims, federal courts may apply traditional equitable principles as a matter of constitutional common law, unless Congress displaces them with a valid alternative remedial scheme

The Intratextual Independent Legislature and the Elections Clause

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws creating independent redistricting commissions that purport to limit a state legislature’s power to draw congressional districts or otherwise regulate federal elections violate the Elections Clause