Plurality opinion

About: Plurality opinion is a research topic. Over the lifetime, 163 publications have been published within this topic receiving 5206 citations.

The Inconvenience of a 'Constitution [That] Follows the Flag…But Doesn't Quite Catch Up with It': From Downes v. Bidwell to Boumediene v. Bush

Abstract: Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes – as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico – is still the dominant interpretation of the Constitution’s Territorial Clause, abandoning the rule set forth in 1856 in Dred Scott v. Sanford. The Boumediene majority labels this a “situational” standard that allows it to pick which provisions of the Constitution will be enforced in the U.S. Territorial Possessions and now extraterritorially as well. This article provides historical context and analysis of the Insular Cases, that series of decisions on the power of the U.S. government over territory and people under the Territorial Clause, and criticizes the Boumediene majority’s use of it to justify the “situational” application of constitutional rights to subjects of United States law, especially to those who are most “inconvenienced”: the territorial U.S. citizens. The article also points out the fallacy that these legal situations are temporary and transitional given that most of the current territorial possessions have been continuously occupied since the end of the Spanish American War in 1898. I began work on this article a few weeks after the Boumediene decision was issued in an attempt to greatly expand a short contribution to an anthology into an article, and to discuss the Supreme Court’s most recent citation of the Insular Cases. But unforeseen circumstances forced me to move on to other projects and delay its publication. Luckily, this delay has given me the opportunity to revise the draft and to review the literature produced in response to the case. A LEXIS search of published law review articles found 506 articles that referenced Boumediene in their text. When that search was refined to articles referencing Boumediene and the Insular Cases together, it produced 48 article results. The study of the published articles leaves me almost as disappointed as I was in the Fall of 2008 with the level of study of the Insular Cases by the U.S. legal mainstream.

Authorizations For the Use of Force, International Law, and The Charming Betsy Canon

Abstract: International law has figured prominently in several on-going disputes around actions of the U.S. military in Afghanistan, Iraq, Guantanamo, and here in the United States, but the precise relationship between international law and President's war powers has nonetheless gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorization for the use of force. Recent cases, including Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), have confirmed the importance of congressional authorization to the Court's construction of the President's war powers. International law can, in turn, play an important role in how courts interpret the scope of general authorizations for the use of force by Congress. The plurality opinion in Hamdi illustrates this point, but unfortunately relies on international norms without sufficient attention to their content or their relationship to the authorization provided by Congress. This article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the so-called Charming Betsy canon, does a good job of maximizing the presumed preferences of Congress, advances separation of powers in a number of ways, and promotes several normative values that favor the use of international law as an interpretive tool.

Free Speech: Government Employees and Government Contractors

Abstract: Public administration is based in law. Practitioners need little reminding of this, as they are faced daily with issues that arise through lawsuits, judicial decrees, new legislation, and intergovernmental relations that are embodied in contracts (Koenig and Kise, 1996). The scholarly literature reflects some of these relationships, with the primary focus being on omnibus litigation and individual cases of flagrant constitutional violations (Koenig, 1996). It is rarer to find analyses of cases that focus on the day-to-day concerns of the public administrator. The analyses of this type that exist (Koenig and O'Leary, 1996; Baldo, 1990) are offered only on a sporadic basis, often in journals not read by professional public administrators. While increasing numbers of articles relate court decisions to the jobs of public administrators, the vast majority of the literature on the practical impacts of judge-made law remains outside the realm of most public administrators. The focus of this column will be to fill that gap, to look at some of the cases that have an impact on how administration in United States governments is altered by judicial decisions. In future columns, cases from the dockets of the United States Supreme Court, the federal courts of appeals, and state supreme courts win be reviewed. Each column will be organized around a particular theme to make clear the trend of decisions in particular cases. Different themes will be adopted -- the environment, management, intergovernmental relations, and the budget -- and examined to assess the impact of judicial action on public administration. In each column, the focus will be on providing a succinct and legally correct explanation of the major issue or issues discussed the cases discussed and identifying potential effects of the decision on public administration. Little time will be spent on how the parties to the litigation have been influenced by the decision of the court, as those results are often too particularistic to be of use to other public administrators. Instead, ramifications of broad concern will be articulated, and the discussion of the implications of those decisions will focus on how public administration and public administrators may be forced to change in light of the decisions. The purpose of this inaugural column is to provide a template of how future columns will be written. This will be accomplished by analyzing two First Amendment cases recently decided by the United States Supreme Court (Board of County Commissioners, Wabaunsee County, Kansas v. Umbebr, 116 S. Ct. 2342, _____ L.Ed.2d 1996); and O'Hare Truck Service, Inc. v. City of Northlake, 116 S. Ct. The promise of freedom of speech is made in the First Amendment to the United States Constitution. The idea of freedom of speech is one that most American citizens respect and believe to be one of the primary benefits of American citizenship. However, not all speech is protected under the First Amendment (Connick v. Myers 461 U.S. 138, 1984, and not every speaker is given the same level of protection. The United States Supreme Court has held that all governments of the United States may at times terminate a contract of employment, even if that termination would serve to limit the expression of First Amendment rights of government employees, if political affiliation is pertinent to the position (Elrod v. Burns, 427 U.S. 347, 1976 [plurality opinion], and Branti v. Finkel, 445 U.S. 507, 1980). Some of the most notable limitations of First Amendment rights have come when the speech involved is made by an employee of the government and the government has an identifiable interest in not permitting the speech to be heard. The Court, in Umbehr, notes, "The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern" (2347). If termination occurs for some other reason than the speech in question, the decision to fire the employee will be upheld. …

Federal Class Actions: A Near-Death Experience in a Shady Grove

Abstract: In a significant appeal decided March 31, 2010 ― and largely ignored by the media ― a plurality of Supreme Court Justices in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. rescued federal class actions from withering demise at the hands of the states. The media is to be forgiven for its neglect, however, as Shady Grove turned on a nuanced Erie problem, a jurisprudential doctrine that defies witty sound bites and easy summarization. Even Justice Scalia, delivering the plurality opinion to a Supreme Court audience, noted: “Eyes have glazed over already.” The Court decided that Federal Rule of Civil Procedure 23 takes precedence in federal diversity class actions and preempts state statutory provisions that limit class litigation. Shady Grove is muddled, however, by an array of decisions running nearly forty-two pages in length, with Justices joining and concurring in various parts. One needs a scorecard to tally doctrinal positions. Moreover, Shady Grove resulted in an unusual alignment of Justices that defied ideological predispositions and stereotypes. Justice Sotomayor joined conservative Chief Justice Roberts and Justices Scalia and Thomas to save the federal class action, while Justice Alito joined liberal dissenting Justices Kennedy, Ginsburg, and Breyer in support of state prerogative. There is no majority opinion in Shady Grove. The Court split 4-1-4, with the departing Justice Stevens's concurrence supplying the pivotal vote in support of Rule 23. Justice Stevens's concurrence, however, simultaneously disagrees with Scalia's opinion and agrees with Ginsburg's dissent, further mystifying Erie doctrine. As a policy matter, the Court's decision in Shady Grove will have a wide-ranging impact on the future of class action litigation in both federal and state courts. In essence, a slim plurality of the Supreme Court saved the federal class action from death by a thousand cuts through state-limiting provisions on class litigation. The Justices recognized that their decision will encourage class action federal forum shopping to evade states with existing statutory limits on class litigation. Justice Ginsburg noted the irony inherent in the Court's decision, which undermined congressional intent in enacting the Class Action Fairness Act of 2005 (“CAFA”) while saving the federal class action. As a matter of Erie jurisprudence, the Court splintered on Erie principles and muddied the already murky swamp of Erie doctrine. Shady Grove is destined to become a classic “teaching case” in law schools that will perplex professors and law students alike.