The Reconstruction Congress
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The Editors of The University of Chicago Law Review wish to acknowledge the passing of Professor Currie while this Article was being prepared for press. We offer our condolences to his family, friends, and colleagues.
This article is a sequel to The Civil War Congress, which appeared not long ago in The University of Chicago Law Review. Both are elements of a continuing study of extrajudicial interpretation of the Constitution, with an emphasis on the debates in Congress. The present installment begins where the preceding one left off: with the accession of Andrew Johnson to the presidency upon the assassination of President Lincoln in April 1865.
I would like to thank Professor Douglas Baird, Professor Jared Mayer, and members of The University of Chicago Law Review, including Margaret Schaack, Zoë Ewing, Miranda Coombe, Eric Haupt, and Jack Brake, for their invaluable assistance.
Complete preemption is a jurisdictional doctrine in which a federal statute so wholly envelops certain state law claims that those claims effectively cease to exist. Aside from an explicit complete preemption hook, the Supreme Court has recognized just one way for a federal statute to completely preempt state law claims: it must provide an exclusive federal remedy and also have a special nature that makes it extra federal. In this Comment, Ryan Jain-Liu tracks the historical evolution of U.S. bankruptcy to make this second showing. In doing so, this Comment observes two entwined trends in the history of U.S. bankruptcy: bankruptcy simultaneously became more remedial—and thus more voluntary—as the federal government asserted increased control over bankruptcy law. The dual developments toward bankruptcy-as-remedy and bankruptcy-as-federal combine to provide involuntary debtors special protection and to give involuntary bankruptcy a special federal nature. Finally, this Comment expands on the case study of involuntary bankruptcy to argue that historical evolution can form the basis for recognizing an area of law’s special federal nature and support application of the complete preemption doctrine to novel contexts.
For feedback and suggestions at various stages of this project, I thank David Barron, Mary Sarah Bilder, Nikolas Bowie, Richard Chen, Noah Feldman, Idriss Fofana, Barry Friedman, Jack Goldsmith, Daniel Hulsebosch, Mark Jia, Michael Klarman, Chris Mirasola, and Susannah Barton Tobin. This project also benefitted from workshops with faculty at Boston College Law School, University of Chicago Law School, Cornell Law School, Harvard Law School, Loyola Law School, New York University School of Law, Notre Dame Law School, University of San Diego School of Law, Seattle University School of Law, University of Texas School of Law, University of Southern California Gould School of Law, and Washington University School of Law. I am also grateful to Emma Svoboda and Elaine Tsui for research assistance and to the members of the University of Chicago Law Review for their hard work editing the manuscript.
This Article by Marco Basile argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. At the same time, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more “legal” than political and international law as more “political” than legal. By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from the past. The Article ultimately invites us to reimagine a more integrated public law today.
I would like to thank Professors Saul Levmore and Lior Strahilevitz for their thoughtful advice and insight and the editors and staff of The University of Chicago Law Review for their valuable feedback and edits.
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. In this Comment, Coby Goldberg provides the only comprehensive analysis of the judicial takings caselaw since Stop the Beach, in order to determine why no court has found a judicial taking. Based on this analysis of the caselaw, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach, however. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine is functioning as something akin to a canon of constitutional avoidance. If decided the other way, none of those three decisions would have avoided actions that would have amounted to judicial takings. This Comment thus concludes that judicial takings doctrine leads to worse outcomes in property law, and so, out of a concern for constitutional problems that never arise, courts reject decisions they would otherwise adopt.