Leib on Supermajoritarianism and Interpretation

Ethan Leib has published an article called "Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-Originalists," 101 Nw. L. Rev. 1905 (2007). Here is the abstract:

John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government. But they have gone too far. In "A Pragmatic Defense of Originalism," they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. This most recent piece of their project simply does not work. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. And, finally, I argue that nothing about provisions subject to supermajoritarian agreement justifies, without more substantial argument, an originalist interpretative regime. In the final analysis, supermajoritarianism notwithstanding, we are left to debate the merits of originalism on the same terms as before McGinnis and Rappaport's current intervention. It may very well be that our Constitution is a great and desirable document, but nothing about its supermajoritarian genesis necessarily makes it so or requires us to follow only its original meaning.

Here is the link: http://www.law.northwestern.edu/lawreview/v101/n4/1905/LR101n4Leib.pdf

Lee on the Legality of the NSA Wiretapping Program

Evan Lee has published an article titled, "The Legality of the NSA Wiretapping Program," which appears at 21 Tex. J. Civ. Lib. & Civ. Rts. 1 (2006)(available from HeinOnline). The article argues that Article II authorizes the Executive Branch to engage in such wiretapping, but that Congress has validly regulated such surveillance by way of the Foreign Intelligence Surveillance Act, and therefore that the program is illegal.

Schiller on the Interaction of Courts and Agencies During the New Deal

Reuel Schiller has posted an article to SSRN titled, "The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law," which will be published in the Michigan Law Review at 106 Mich. L. Rev. 399 (December 2007). Here is the link: http://ssrn.com/abstract=1026721. Here is the abstract:

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt's appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a "prescriptive" vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.

Keitner on the Use of International and Foreign Law Sources in U.S. Adjudication

Chimene Keitner has posted a paper to SSRN titled, "International and Foreign Law Sources: Siren Song for U.S. Judges?" It was written as an issue brief for the American Constitution Society and can be viewed at http://ssrn.com/abstract=1028313. Here is the abstract:

Professor Keitner addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication. She begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that "one's opinion about the potential relevance of foreign and international law sources . . . depends in no small part on one's view of the role of judges in a constitutional democracy." Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication (categorizing them as as institutionalist, instrumentalist, and inherentist objections), and responds to each in turn. Professor Keitner concludes, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."