Constitutional Law

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.

The common law is, among other things, a mode of legal development. In this mode, judges develop the law yet simultaneously act as if they were only discovering law that already existed. This sketch of the common law introduces contemporary readers to a way of thinking and talking about law that was once instinctive for judges. The common law as a mode of development may seem alien at certain points, yet its influence on the legal systems of the United States has been enormous, and it is critical background for understanding the grant of “the judicial power” in the U.S. Constitution.

Welcome to the Supreme Court’s emergency docket. Like the Twilight Zone, the emergency docket is “the middle ground between light and shadow,” and hence is the core of the so-called “shadow docket.” Commentators have criticized the Court’s shadow-docket interventions: Summary orders shirk the Court’s responsibility to resolve important legal issues in reasoned opinions informed by complete briefing and oral argument, are unwise because they risk premature decisionmaking before issues percolate in the lower courts, provide insufficient or confusing direction for lower courts, and undermine the Court’s legitimacy because of their “shadowy” deliberation. My big problem is that shadow-docket stays deeply (not just technically) undermine the rule of law and violently affect the lives of people like O.C.G. without sufficient legal justification.

Professor Stephanie Hall Barclay proposes and defends a new theoretical model of constitutional rights. While virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights and generally hold out the judiciary as the primary guardian of these rights, this Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. It proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.

The Constitution’s Double Jeopardy Clause allows successive criminal prosecutions for the same conduct so long as they are pursued by separate sovereigns (such as two different states). This Case Note examines Illinois law to argue that state statutes are a useful, though imperfect, means of addressing the dual sovereignty doctrine. It argues further that the details of statutory language are highly consequential to whether states can scale back dual sovereignty in practice.

This Case Note offers some direction for handling competing interests in this developing body of law and other complex cases weighing intersecting constitutional rights against governmental interests. Parts I and II provide background information, describing the Sell test and the current state of constitutional and statutory religious protections. Part III critically analyzes how courts, including the Fifth Circuit, have considered religious objections in Sell determinations so far. Because such analysis remains underdeveloped in the courts, Part IV suggests frameworks for coherently integrating Free Exercise doctrine into Sell inquiries based on the “hybrid theory” of constitutional rights.

This Case Note explores the possibility that, in a world where TikTok is banned or heavily regulated, individual TikTok users could sue states under a Takings Clause theory. Any such cases would have to wrestle with two core questions (1) whether the account holders hold an actionable property interest in their accounts; and (2) if so, whether permanently and totally depriving users of access to their accounts constitutes a taking.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.

In the midst of a New England winter long ago, young people of Boston filed into a drafty meeting hall up the road from the harbor. They had assembled on that January morning in 1839 for the seventh annual meeting of the New England Anti-Slavery Society.