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Letting Congress Be Congress: A Comment on Tiers of Scrutiny in Enumerated Powers Jurisprudence

Michael J. Gerhardt

In his recently published article, Tiers of Scrutiny in Enumerated Powers Jurisprudence, Professor Huq has proposed a sophisticated theory of judicial review that asks the Supreme Court in effect to allow Congress to be Congress. He argues that the Supreme Court’s “enumerated powers jurisprudence” has no principled basis in the Constitution; allows the Court to manufacture or manipulate, without good reason and with often quite negative consequences, various tiers of scrutiny; and is essentially a means or cover for judicial policy making. As an alternative to the Court’s manipulative doctrine, he suggests a “lockstep” approach requiring the Supreme Court to “jettison its use of discontinuous tiers of scrutiny and instead deploy a unitary standard of review for all of Congress’s enumerated powers.”

The author argues in this Essay that both Professor Huq’s descriptive and normative analyses raise some serious questions, which risk undermining the utility, coherence, and appeal of his project.

80 U Chi L Rev Dialogue 291 [Essay PDF]

Featured Print Articles

Volume 81, Issue 1 (more)


Libertarian Paternalism, Path Dependence, and Temporary Law

Article by Tom Ginsburg, Jonathan S. Masur & Richard H. McAdams

The recent wave of behavioral economics has led some theorists to advocate the possibility of "libertarian paternalism," in which regulators designing institutions permit significant individual choice but nonetheless use default rules to "nudge" cognitively biased individuals toward particular salutary choices. In this Article, the authors add the possibility of a different kind of nudge: temporary law.

81 U Chi L Rev 291 [Article PDF]


Governing Communities by Auction

Symposium Article by Abraham Bell & Gideon Parchomovsky

Auction theory has developed as a branch of game theory in the economic literature. Through the development of sophisticated auctioning mechanisms, auction theorists have been able to come up with ways to allocate goods and services to their highest-value users. Well-designed auctions accomplish this result by decoupling a bidder's bid from the price she will pay if she wins. Auctions based on decoupled bids have a unique ability to reveal private information and overcome information asymmetries. Furthermore, they have the potential to do so at a lower cost than conventional market transactions. 

In this Article, the authors seek to harness the insights of auction theory to devise an improved governance model for common-interest communities, perhaps the most important real-property form today.

81 U Chi L Rev 1 [Article PDF]