Showing papers on "Substantive due process published in 2006"

Controlling the Grasping Hand: Economic Development Takings After Kelo

Abstract: The Supreme Court's controversial recent decision in Kelo v. City of New London upheld the condemnation of private property for purposes of economic development. This Article argues that Kelo was wrongly decided and that courts should forbid condemnations for economic development. Part I analyzes the flaws of economic development takings generally. Such condemnations allow politically powerful interest groups to capture the condemnation process for the purpose of enriching themselves at the expense of the poor and politically weak. Economic development takings are especially vulnerable to abuse because their rationale can justify almost any condemnation that transfers property to a commercial enterprise. Several other aspects of economic development takings also exacerbate the danger. This Part also shows that the need to eliminate holdout problems that could block desirable assembly projects cannot justify permitting economic development takings. In most cases, private developers can prevent holdouts by such noncoercive methods as assembling property in secret and adopting precommitment strategies that prevent holdouts from using their bargaining power. Part II considers the major alternatives to a categorical ban. While these proposals are not without merit, none can prevent eminent domain abuse as effectively as forbidding the economic development rationale altogether. The first such alternative, adopted for a time by courts in Michigan and Delaware, is to require heightened scrutiny in cases where the condemnation power is used in a way that benefits identifiable private interests. Unfortunately, the heightened scrutiny test is not an adequate bulwark against the dangers of economic development takings, and may in some cases actually exacerbate those risks. The same weaknesses bedevil academic proposals to impose means-ends scrutiny on takings, which bear a considerable resemblance to the heightened scrutiny test. Increasing the compensation awarded to property owners targeted for condemnation is another possible alternative to a ban. While this idea has some merit, it is almost impossible to accurately calculate the appropriate amount of compensation for subjective value. Moreover, even a perfect compensation formula cannot offset the damage inflicted by economic development takings on taxpayers and the community as a whole. Many defenders of the Kelo decision advocate procedural protections for property owners as an alternative to vigorous judicial enforcement of public use limitations on takings. Though such protections have real value, they are unlikely to be an adequate substitute for a judicial ban on economic development takings. Lastly, it is possible that strong judicial review of economic development takings is unnecessary because localities that abuse their eminent domain powers will be disciplined by interjurisdictional competition in a federal system. While exit rights are a valuable tool for forcing governments to respect the needs and interests of citizens, they have only limited utility in protecting property rights in land because real property is an immobile asset that owners cannot take with them when they vote with their feet. In Part III, I consider the Supreme Court's decision in Kelo. In advocating broad deference to local governments on public use issues, the Kelo majority unfortunately ignored the serious defects in the political processes that control economic development takings. The Court's analysis of history and precedent also has significant weaknesses, particularly in its heavy reliance on early twentieth century precedents that were based on substantive due process rather than on the Takings Clause of the Fifth Amendment. Nonetheless, Kelo actually represents a modest improvement on the Court's previous public use decisions, by holding out the possibility of at least slightly greater judicial scrutiny. A final important aspect of Kelo is the strong political reaction against it, which has led Congress and numerous state legislatures to consider legislation restricting the use of eminent domain. Unfortunately, my analysis shows that most of the proposed legislation is likely to have little or no effect and may simply represent position-taking intended to mollify public opinion without actually constraining the use of eminent domain. Part IV strikes an additional note of caution, showing that even a categorical ban on economic development takings is not a comprehensive solution to the underlying problem of eminent domain abuse. A ban on economic development takings can potentially be circumvented in several ways, most notably because such bans still permit condemnations to alleviate blight. Courts in many states have already defined blight so broadly that the definition could encompass virtually any property. The blight exception to the ban on economic development condemnations must be carefully limited, lest it swallow the rule.

Galactic Stupidity and the Business Judgment Rule

Abstract: I. INTRODUCTION II. IS SUBSTANTIVE DUE CARE "FOREIGN" TO THE BUSINESS JUDGMENT RULE? III. THE "REINVIGORATION" OF SUBSTANTIVE DUE CARE IV. SUBSTANTIVE DUE CARE AND THE REASONABLE DIRECTOR V. THE APPLICATION OF SUBSTANTIVE DUE CARE ANALYSIS VI. DISNEY V IGNORED THE SUBSTANTIVE DUE PROCESS ISSUE VII. APPLYING THE "GALACTIC STUPIDITY" STANDARD VIII. CONCLUSION The only real difference I detect in various formulations of the [business judgment] rule involves the question whether if good faith and due care are established, there nevertheless remains room for a judicial judgment concerning the wisdom of the decision. (1) I. INTRODUCTION It is a truth almost universally acknowledged that American courts will not review the substance of the business decisions of corporate directors except under extraordinary circumstances. Embodied in the much-debated (2) "business judgment rule," the deference displayed towards the decisions of corporate directors arises not from a belief that directors are always right, or even always honorable, but from a belief that "investors' wealth would be lower if managers' decisions were routinely subjected to strict judicial review." (3) Corporate directors take the kind of risks that investors want them to take because the directors know that, whatever the outcome, stockholders will not have any legal recourse for losses arising from those actions unless the decision makers violated a duty such as loyalty or good faith. The belief in this general principle of the business judgment rule is so widespread that, despite the recent scandals and negative publicity surrounding the conduct of corporate directors, few participants in the debate are calling for significant changes to the rule's deference to actions taken by corporate decision makers. (4) There is plainly broad agreement that shareholders make more money when directors know they can make decisions--especially risky decisions--without the fear that they (5) or the company will be the subject of successful legal actions should those decisions not ultimately benefit the company or the shareholders themselves. This does not mean that the legislative, judicial, legal, financial, academic, and investor communities do not view with disdain directors who make bad decisions, foolish decisions, or excessively risky decisions. It simply means that these communities do not wish to impose legal liability on directors, or the corporations they oversee, for the negative consequences of such decisions. (6) A board of directors that pig-headedly leads a corporation in the wrong direction is worthy of our contempt and deserves to be voted out or abandoned by investors. But our corporate law does not allow the aggrieved to seek legal action against a corporation just because its directors made a bad decision. As such, the business judgment rule does not seem to have a moral or ethical dimension. Rather, it is one of our most utilitarian rules. Wealth is maximized when corporations are run by directors who know that their decisions will be reviewed by investors, by analysts, by stockholders, and by business partners--but not by the courts. (7) Practically speaking, the business judgment rule is "simply a policy of judicial non-review." (8) It is--except when it allows review. The problem is, as a noted scholar has put it, "to identify the circumstances in which review is necessary." (9) While many academics and judges repeatedly assert that the business judgment rule does not allow for review of the substance of director decision making, Delaware courts nonetheless display an apparent willingness to do just that when the directors' actions approach the borderline of good faith. (10) Indeed, in eases in which the plaintiffs allege bad faith but the facts do not present evidence of disloyalty or a knowing breach of duty, courts review the substance of the directors' decision in order to determine whether or not the directors have complied with all of their fiduciary obligations and therefore, whether the plaintiffs have successfully rebutted the presumptions of the business judgment rule. …

Lochner v. New York: A Centennial Retrospective

Abstract: This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case. Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context. Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent. The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent. Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence. Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner. Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era. Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.

We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law

Abstract: "How does it feel To be without a home Like a complete unknown Like a rolling stone?" -Bob Dylan1 I. INTRODUCTION In September of 2004, a group of local business owners and professionals in Nashville, Tennessee, together with the Nashville Downtown Partnership, a local downtown improvement organization, submitted a plan to the Metro Council2 that proposed making it illegal to panhandle in the busiest areas of the city.3 Advocates of the proposed legislation argued that panhandlers "harass tourists and customers and make the city less appealing."4 Opponents viewed the proposal as nothing more than an attempt to force the homeless out of the city.5 The Nashville plan is patterned after the measures that several major American cities-including Philadelphia, Denver, and Seattle-have adopted in an attempt to deal with the epidemic of homelessness that has swept the nation in recent years.6 Homelessness was first recognized as a significant social problem in the United States in the 1980s.7 Though the problem has since become increasingly prominent in the public eye, Congress has done surprisingly little to ameliorate its effects. To date, the only major piece of federal legislation that has attempted to address homelessness is the Stewart B. McKinney Homeless Assistance Act of 1987,8 which authorized a variety of services for the homeless, including emergency shelter, transitional housing, job training, primary health care, education, and some permanent housing. While the McKinney Act was and remains landmark legislation concerning the plight of the homeless, red tape, budget cuts, and the magnitude of the homeless problem have hampered its efficacy in addressing homelessness.9 In the absence of effective federal legislation, state and city governments have been left largely to their own devices to manage the problems posed by local homeless populations. Many local governments have responded to the problems caused by homelessness by criminalizing certain conduct commonly associated with homelessness, such as begging,10 sleeping or camping in public,11 and loitering.12 Expanding the scope of the criminal law in this way and placing the homeless in jail is certainly one way of addressing homelessness. However, while such a solution will likely please tourists, merchants, and others who are made uncomfortable by the mere presence of the homeless, this approach does nothing to address the causes of homelessness or prevent the homeless from returning to the streets once they are released from jail. If the intent of local governments is to find a permanent solution to the problem-one that helps individuals overcome the circumstances that have led to their homelessness and sets them on a path toward becoming productive members of society-then criminalizing conduct that is unavoidable for the homeless is futile. This Note argues that criminalizing acts commonly associated with homelessness is an ineffective solution to the problem of homelessness. This Note further argues that courts should strike down laws that essentially criminalize the status of homelessness as violations of state constitutional due process guarantees. A brief history of the types of legal challenges that have been brought against state and local laws targeting the homeless will be presented in Part II. Part III explains why future challenges to these laws brought under the Due Process Clauses of the Fifth and Fourteenth Amendments to the federal Constitution are unlikely to be successful. Part IV then argues that due process challenges under state constitutions are far more likely to succeed. This Note will conclude in Part V by highlighting cities that are creatively working to reduce their problems with the homeless and by encouraging advocates for the homeless to work toward the repeal or invalidation of "anti-homeless" laws and urging local governments to develop more creative and effective solutions to the problem. …

Three Theories of Substantive Due Process

Abstract: Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving national values, is a theory that may be implicit in Lawrence v. Texas and that finds support by analogy in recent Eighth Amendment cases. Under this approach, substantive due process protects values that command widespread contemporary support, as evidenced by legal developments and societal understandings that may change over time.In this Article, I offer a detailed account of each of these three theories, explaining the decisionmaking methodology that each requires for the identification of unenumerated constitutional rights. The Article also develops and applies three criteria of evaluation, grounded in relevant considerations of constitutional policy: majoritarian self-government, judicial objectivity and competence, and functional justification. I contend that each theory can be defended as a matter of constitutional policy but that, on balance, the most defensible approach is the theory of evolving national values. If my thesis is correct, it promises enhanced coherency and legitimacy for this embattled area of constitutional law.

Fair and Equitable Treatment: Echoes of FDR's Court-Packing Plan in the International Law Approach Towards Regulatory Expropriation

Abstract: In this article, the author compares U.S. Constitutional law addressing "regulatory takings," including substantive due process, with analogous international investment law reviewing regulatory expropriations. Many of the concepts underlying the U.S. approach towards substantive due process appear in discussions of the meaning of international investment law protections, particularly the "Fair and Equitable Treatment" (F&ET) obligation. The article first reviews direct efforts by the U.S. Government to harmonize U.S. Constitutional practice and international law with respect to regulatory expropriations. It then considers how the U.S. substantive due process and procedural due process approaches towards regulation of property interests compare with the developing body of F&ET decisions and commentary concerning regulatory conduct of a host State.

The Constitutionality of "Best Interests" Parentage

Abstract: INTRODUCTION The premise of this Symposium is unabashedly radical: to imagine a new law of parentage focused exclusively on the needs and interests of children. Participants were invited to set aside questions of political feasibility and the constraints of settled law in asking how the law should assign parentage if its only goal were to maximize the welfare of children. The notion is radical because, traditionally, parentage law has been driven significantly by the needs and interests of adults - a sense of the natural entitlement of genetic parents, for instance, or society's desire to protect marriage or enable the orderly transfer of wealth between generations. One need only recall parentage law's historical treatment of non-marital children - classifying them asfilius nullius, or the child of no one - to appreciate the point.1 Even more strikingly, perhaps, the invitation expressly assumes a governmental control over the question of parentage that would strike many as alien. In its foundational case recognizing constitutional protection for family privacy, after all, the Supreme Court described the idea that government might reassign parentage in order to advance its own vision of child welfare as resting on "ideas touching the relation between individual and State . . . wholly different from" our own.2 And, yet, the invitation to think creatively and expansively about the meaning of legal parentage is extremely timely. Judges and legislators around the country are wrestling with the question as never before.3 The easy certainty of DNA testing and the fluidity of modern childrearing arrangements have combined to test fundamental assumptions about the meaning of kinship between adults and children.4 And, in responding to the challenge, some courts have opened the door to the idea of assigning parentage based directly on a judicial determination of a child's best interests.5 Accordingly, the work of crafting an explicitly "child-centered" parentage law is not solely a matter of academic interest; it is already the real- world occupation of at least some judges and lawyers. The question that I take up in this article is whether the toe-hold that "best interests" parentage has established in American law can be sustained against objections that it violates the fundamental constitutional rights of traditional parents. In other words, is it constitutional to premise legal parentage on a governmental finding of a child's "best interests"? The answer that I come to is that, perhaps not surprisingly, it depends. Part I of the Article sketches the context in which the question now arises: the breakdown of traditional parentage law - in which legal parentage was tied closely to clear markers relating to blood, marriage, and adoption - and the emergence of judicial interest in mediating conflicts among competing parental figures by resort to a child's best interests. Part ? considers whether substantive due process protection for family privacy limits the state's power to pick and choose among the competing claimants. It concludes that, notwithstanding recent suggestions of an essentially plenary state power to redefine parental status, the Constitution likely does confer a privacy right to parental identity on at least some individuals. Finally, in Part G?, I consider whether the privacy right to parental identity might be overcome based solely on a governmental assessment of a child's best interests. In my view, the answer is to be derived not from a rigid application of strict constitutional scrutiny, but from a more nuanced evaluation of the competing public and private interests at stake. Such an evaluation, I conclude, suggests that states enjoy considerable latitude to reorient parentage law in a child-centered direction. At the same time, any law that would defy widely shared social expectations in withholding parentage must be justified by something more compelling than a bare "best interests" showing. …

The police power revisited: Phantom incorporation and the roots of the takings "muddle"

Abstract: Lingle v. Chevron USA, Inc. exposed a deep flaw in regulatory takings doctrine. Lingle rejected the Agins holding that a regulation that does not substantially advance a legitimate state interest is a compensable taking. That formulation, Lingle said, was based on substantive due process precedents and is better suited to a due process than a takings inquiry. The confusion is not confined to Agins; it pervades contemporary takings doctrine. This article traces the muddle in takings law to an ill-considered phantom incorporation holding in Penn Central v. New York, which erroneously attributed to Chicago Burlington & Quincy v. Chicago (1897) [Chicago B & Q] the holding that the Fifth Amendment takings clause applies to the states. But Chicago B & Q was decided strictly on Fourteenth Amendment due process grounds, and made no mention of the Fifth Amendment or the takings clause. Nor did Chicago B & Q overrule Barron v. Baltimore, which had expressly limited the takings clause to the federal government - a precedent the Court would continue to cite as good law until the middle of the twentieth century. From Chicago B & Q forward, just compensation law proceeded on two independent and parallel tracks: due process constrained the states, while the takings clause applied only to the federal government, reflecting basic federalism principles. Property law was state law in the first instance. Every state claimed as a foundational principle of its law that all property was held subject to, and limited by, the state's police power to regulate to protect the public health, safety, morals, and welfare. Due process doctrine held that a valid police power measure could never be a taking because property rights simply ended where the police power began. The federal government, lacking a general police power, had no comparable defense, and Fifth Amendment takings claims were decided on other grounds. Penn Central - not Chicago B & Q - was the first Supreme Court case to apply the Fifth Amendment takings clause directly to the states. Conflating substantive due process and takings clause standards and precedents, Penn Central sowed doctrinal confusion, leading to reverse incorporation of substantive due process concepts into takings clause doctrine, eliminating the states' police power defense, truncating the role of state law in takings adjudication, and undercutting federalism in our constitutional law of property. This Article urges adjustments in takings doctrine to recognize the police power as a background principle of state property law, consistent with historic understandings.

The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas

Abstract: Introduction...................................................................................... 410 I. The Rise and Potential Fall of the GLUCKSBERG Doctrine .......................................................... 412 A. The Restraint Principle ..................................................... 415 B. The Narrowest Description Rule and the Narrow Precedent Corollary ....................................... 417 C. The History and Tradition Inquiry .................................... 419 D. The Tiered Review Rule ..................................................... 422 II. A Tale of Two Surveys: GLUCKSBERG Lives, LAWRENCE Languishes........................................................... 424 A. The Glucksberg Survey...................................................... 425 1. Methodology ............................................................... 425 2. Overall Trends............................................................. 426 B. The Lawrence Survey ........................................................ 429 1. Methodology ............................................................... 429 2. Overall Trends............................................................. 430 III. The Persistence of the GLUCKSBERG Doctrine, Take One: Doctrinal and Procedural Explanations ............. 431 A. Procedural Explanations................................................... 431 B. Substantive Explanations .................................................. 432 1. The “Subject Matter Distinction Theory” .................. 432 2. The “Avoidance Theory” (a.k.a., the “Abigail Alliance Approach”).................................... 433 IV. The Persistence of the GLUCKSBERG Doctrine, Take Two: Pragmatic Explanations ................................. 435 A. The Glucksberg Doctrine as Culture War Counterstrike: Accusations and Evidence................................................. 436 B. First Rebuttal: Difficulties in Interpreting Lawrence ........ 439 C. Second Rebuttal: Institutional Restraint ........................... 441

Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions

Abstract: In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), two regulatory takings decisions that reviewed "exactions," regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their "nexus" and "proportionality" tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property. Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that "nexus" and "proportionality" provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.

Scrutinizing the Second Amendment

Abstract: The lively debate over the meaning of the Second Amendment has focused on the question of whether the amendment protects a right of individuals to possess arms or a collective right of states to maintain militias free from federal interference. Over the past few years, the individual-rights view has won over at least one federal circuit court and has become the official position of the Bush Administration's Department of Justice. Mostly overlooked in the Second Amendment literature however is the important question of what standard of review would apply to laws burdening the right to bear arms under the individual-rights reading. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right is fundamental or because it is located in the Bill of Rights. In this article, I challenge that assumption and consider the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review. My discussion is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms and, tellingly, every state to consider the question applies a deferential reasonable regulation standard in arms rights cases. No state applies strict scrutiny or any other type of heightened review to gun laws. Since World War II, the state courts have authored hundreds of opinions using the reasonable regulation test to determine the constitutionality of all sorts of gun control laws. All but a fraction of these decisions uphold gun control laws as reasonable measures to protect public safety. If the federal courts follow this universal practice of the state courts and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review. Moreover, I argue, even if the federal courts decide to apply strict scrutiny, most weapons laws are still likely to be upheld. If so, then any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive.

Unenumerated Rights in Different Democratic Regimes

Abstract: Lochner v. New York and Roe v. Wade are often linked together as substantive due process decisions. Since Roe was decided 1973, critics and defenders have been dancing a well-practiced minuet: critics charging that Roe is Lochner all over again; defenders distinguishing the two cases, castigating Lochner while celebrating Roe. This Article argues that this entire dance is out of beat with the historical music. The analogical link between Lochner and Roe is ahistorical and misleading. The key to understanding the relationship (or lack of relationship) between Lochner and Roe is not the definition of substantive due process. In fact, no Supreme Court justice even used the phrase, ‘substantive due process’ until 1948, when Justice Wiley B. Rutledge used it in dissent. To understand Lochner and Roe correctly, one must understand that each was decided under a different democratic regime: Lochner under republican democracy, and Roe under pluralist democracy. Because of the distinctive characteristics of republican and pluralist democracies, the practices of judicial review starkly differed under each. Put in different words, Lochner and Roe were decided within distinct paradigms of democracy and constitutional law, and as such, the cases are largely incommensurable.

No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners

Abstract: This article argues that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and to make decisions about how to configure one’s household. Next, the article contends that the death penalty interferes with the constitutional right to family by harming the prisoner’s family members, whether or not the prisoner is ever executed. Finally, the article examines each of the justifications for the death penalty in the context of the myriad problems associated with it, such as the conviction of innocent people, racial bias, unfairness in the prosecution of death penalty cases, unequal access to attorneys, and the higher costs of capital punishment compared to long-term incarceration. The article concludes by arguing that the problems associated with the death penalty cannot survive a strict scrutiny analysis, especially when alternatives, such as longterm incarceration, can adequately accomplish the death penalty’s purported goals of retribution, deterrence, incapacitation, and restoration of social order.

Three Theories of Substantive Due Process

Abstract: Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving national values, is a theory that may be implicit in Lawrence v. Texas and that finds support by analogy in recent Eighth Amendment cases. Under this approach, substantive due process protects values that command widespread contemporary support, as evidenced by legal developments and societal understandings that may change over time.In this Article, I offer a detailed account of each of these three theories, explaining the decisionmaking methodology that each requires for the identification of unenumerated constitutional rights. The Article also develops and applies three criteria of evaluation, grounded in relevant considerations of constitutional policy: majoritarian self-government, judicial objectivity and competence, and functional justification. I contend that each theory can be defended as a matter of constitutional policy but that, on balance, the most defensible approach is the theory of evolving national values. If my thesis is correct, it promises enhanced coherency and legitimacy for this embattled area of constitutional law.

The Tragic Failure of Roe V. Wade: Why Abortion Should Be Returned to the States

Abstract: 10 TEX. REV. L. & POL. 87 (Fall 2005). For the past thirty-three years, the United States Supreme Court has acted as the self-appointed national abortion control board, making it difficult for states to exercise effective authority to regulate abortion, even when needed to protect the lives of women seeking abortions. In 1973, the Supreme Court in Roe v. Wade and Doe v. Bolton, empowered federal courts to strike down any state or federal abortion law prohibiting or regulating abortions. No state can effectively prohibit any abortion, at any time, for any reason. This was made clear in Stenberg v. Carhart in 2000, when the Supreme Court invalidated the laws of Nebraska and twenty-nine other states prohibiting a particularly grisly procedure called "partial-birth abortion." It was reaffirmed in 2004 when federal courts in California, Nebraska, and New York immediately enjoined the federal Partial Birth Abortion Ban Act of 2003. In this article, the authors set forth four major legal and social reasons for ending the Court's role as the national abortion control board and returning the abortion issue to popular control at the state level. First, the Court's original decisions in Roe and Doe were unconstitutional usurpations of self-government, with no legitimate basis in substantive due process or constitutional law. Second, medical and sociological data from the last thirty-three years demonstrate that the Court's new sociological rationale for the abortion right in Planned Parenthood of Southeastern Pennsylvania v. Casey has little basis in fact. Such reliance has, instead, resulted in significant physical and psychological damage to women. As one federal judge noted, "if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial ... than the Roe Court knew." Third, the Court has failed in its self-appointed role as the national abortion control board. It has failed to monitor the negative impact of abortion--physical, psychological, relational--on women. It has failed to monitor both the substandard credentials of abortion providers and the negative, dangerous conditions in clinics. It failed to require fully informed consent. It obstructed the compelling interest of the states in regulating abortion clinics. It instituted vague, arbitrary, and inconsistent standards for abortion legislation, and then changed, them, repeatedly, in more than twenty-seven cases over thirty-three years. …

The Perils of Unpublished Non-precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit

Abstract: About 80% of federal appellate decisions are non-precedential. This Article examines the practical consequences for district courts and litigants confronting inconsistent appellate opinions issued by the same federal circuit. Specifically, this is a case study comparing the divergent binding and non-precedential opinions applying one frequently invoked constitutional theory within the U.S. Court of Appeals for the Third Circuit, the "state-created danger" theory of substantive due process. The comparison demonstrates that the risks of non-precedential opinions are real. During the six-year interval between binding state-created danger decisions, the Third Circuit created inconsistent non-precedential opinions on the identical legal theory. Doctrinal divergence between the Third Circuit's binding and non-precedential opinions has undermined the predictive value of precedential state-created danger decisions, creating an obstacle to settlement at both the trial and appellate levels. In turn, district courts' unpredictable application of the non-precedential opinions has undermined the critical appellate functions of ensuring that like cases are treated alike, that judicial decisions are not arbitrary, and that legal issues resolved at the appellate level need not be relitigated before the district courts. The practice of issuing non-precedential opinions is justified on efficiency grounds, as a mechanism for overburdened appellate courts to manage their dockets. But doctrinal inconsistency between the Third Circuit's precedential and non-precedential opinions undercuts the efficiency rationale because doctrinal divergences may have led plaintiffs and defendants to value cases differently - potentially leading to more litigation, fewer settlements, and additional need for judicial decision-making. This Article proposes several reforms to reduce doctrinal inconsistency between precedential and non-precedential opinions. Because an appellate court should weigh the same considerations in making each of its publication decisions, the Third Circuit should replace its amorphous publication guideline with specific criteria. The Article concludes by suggesting that, consistent with the common law tradition of empowering the applying court to assess the persuasive value of a judicial decision, the Third Circuit should no longer refuse to cite its own non-precedential opinions, and should follow several circuits in expressly according persuasive value to its non-precedential opinions.

Bartnicki as Lochner: Some Thoughts on First Amendment Lochnerism

Abstract: First Amendment Lochnerism sounds like a constitutional oxymoron, merging the much-despised Lochner v. New York and the much-revered freedom of speech. But recent scholarly commentary has suggested that courts may, and often do, use particular First Amendment rules and doctrines much as Lochner-era courts used economic substantive due process. Identifying the Lochneresque characteristics of the freedom of speech requires that we first understand what exactly we mean by Lochnerism, a term on which there is no consensus, beyond its use as a pejorative conversation-stopper. But we can point to five elements, five concerns that emerge (individually or in combination) in most discussions of the concept. The Lochnerism label reflects some or all of: 1) objections to judicial protection of non-textual rights; 2) objections to individual-rights-centered judicial review generally; 3) objections to the substitution of judicial for legislative judgment as to wisdom and efficacy of policy choices; 4) objections to rigorous judicial scrutiny aimed at ordinary commercial and economic regulation; or 5) objections to old-guard constitutional doctrine standing in the way of progressive legislative and political change. And we can see each of these elements at play in aspects of First Amendment doctrine and theory. With these five elements in mind, one recent decision emerges with so-called Lochnerian tendencies: Bartnicki v. Vopper (2000), in which the Supreme Court rejected a damages claim against two individuals who disclosed the contents of an intercepted cell phone conversation, in violation of the federal wiretap statute. The Court held that the First Amendment protected the disseminators, who were not involved in the illegal interception of the conversation, and who merely were publishing truthful information on a matter of public concern. Whatever interest government had in promoting and protecting individual privacy interests could not overcome the right to publish this information. Ultimately, the Lochnerism tag is inappropriate in discussing a case such as Bartnicki. One could disagree with the decision (although I argue it was rightly decided) and one could disagree with the balance the courts have struck between free expression and privacy. But slapping the Lochner label on the decision merely freezes the conversation and does not allow for meaningful discussion of what that proper doctrinal and normative balance should be. This paper was part of a symposium entitled First Amendment Lochnerism? Constitutional Limitations on Economic Regulation of Communications, Information, and Technology Industries, at Northern Kentucky University, Salmon P. Chase College of Law, in March 2006.

Who's Afraid of Unenumerated Rights?

Abstract: Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.

Compulsory Education and Substantive Due Process: Asserting Student Rights to a Safe and Healthy School Facility

Abstract: This Article asserts that students have a substantive due process right to a public school facility that meets minimum health and safety requirements. Students who cannot afford private school are effectively required by law to spend six to eight hours a day in whatever facilities their state education system provides. Constitutionally protected rights to personal security and bodily integrity are implicated when these facilities directly threaten students’ immediate heath and safety – for example, locked or non-functional bathrooms, unsafe drinking water, or classroom walls covered with asthma-inducing mold. Compulsory education under these conditions violates the substantive limits on state action set by the Due Process Clause.

The Origin of the Compelling State Interest Test and Strict Scrutiny

Abstract: This article argues that strict scrutiny did not originate in equal protection cases. Rather, it originated in the First Amendment in the late 1950s and early 1960s and migrated from there to the Equal Protection Clause in the late-1960s. The Article begins by discussing strict scrutiny analytically, situating it as one of many doctrines through which the Supreme Court gives heightened protection to favored constitutional interests. It then traces the origin of strict scrutiny's compelling state interest requirement to the First Amendment. It shows that the compelling state interest test initially appeared in First Amendment litigation in 1957 and that its birthing process was not complete until 1963. At that time, the compelling interest standard coalesced with the First Amendment's narrow tailoring requirement, which was decades older, to form modern strict scrutiny. The Article also argues that it took another six years for the component parts of strict scrutiny to migrate from the First Amendment to the Equal Protection Clause. The compelling state interest standard was the last component to make the move. When it did, strict scrutiny rapidly blossomed into one of the late-twentieth century's most fundamental constitutional doctrines. In addition to establishing the First Amendment origin of the compelling state interest test and strict scrutiny, this Article discusses the revised history for the light it sheds on strict scrutiny's rationale, arguing that strict scrutiny began as a tool of cost-benefit analysis, not as a means to ferret out illicit governmental motive. It also says the revised history supports the view that over time the Court has shifted the Equal Protection Clause's ?core value? from a proscription of racial subordination to forbidding racial classification.

A Textual-Historical Theory of the Ninth Amendment

Abstract: Despite the lavish attention paid to the Ninth as a possible source of unenumerated rights, surprisingly little attention has been paid to actual text. Although often raised in opposition to reading the Due Process Clause as incorporating only textual rights, the text of the Ninth has nothing to do with interpretation of enumerated rights such as those contained in the Fourteenth Amendment. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. In fact, the standard theory of the Ninth places the text in considerable tension with that of the Tenth. Although both the Ninth and Tenth Amendments close with the same reference to "the people," most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, recent historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. This seems out of sync with a text that speaks only of the retained rights of the people, not the states. This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution such as the Tenth and Fourteenth Amendments. Particular attention is paid to the meaning of "deny or disparage," the distinction between "rights retained" and "rights assigned," and the relationship between rights retained by the people under the Ninth Amendment, and powers reserved to the people under the Tenth. The article closes by sketching a textual-historical approach to judicial enforcement of the Ninth Amendment in a manner that reconciles the text with the Fourteenth Amendment.

Bartnicki as Lochner: Some Thoughts on First Amendment Lochnerism

Abstract: First Amendment Lochnerism sounds like a constitutional oxymoron, merging the much-despised Lochner v. New York and the much-revered freedom of speech. But recent scholarly commentary has suggested that courts may, and often do, use particular First Amendment rules and doctrines much as Lochner-era courts used economic substantive due process. Identifying the Lochneresque characteristics of the freedom of speech requires that we first understand what exactly we mean by Lochnerism, a term on which there is no consensus, beyond its use as a pejorative conversation-stopper. But we can point to five elements, five concerns that emerge (individually or in combination) in most discussions of the concept. The Lochnerism label reflects some or all of: 1) objections to judicial protection of non-textual rights; 2) objections to individual-rights-centered judicial review generally; 3) objections to the substitution of judicial for legislative judgment as to wisdom and efficacy of policy choices; 4) objections to rigorous judicial scrutiny aimed at ordinary commercial and economic regulation; or 5) objections to old-guard constitutional doctrine standing in the way of progressive legislative and political change. And we can see each of these elements at play in aspects of First Amendment doctrine and theory. With these five elements in mind, one recent decision emerges with so-called Lochnerian tendencies: Bartnicki v. Vopper (2000), in which the Supreme Court rejected a damages claim against two individuals who disclosed the contents of an intercepted cell phone conversation, in violation of the federal wiretap statute. The Court held that the First Amendment protected the disseminators, who were not involved in the illegal interception of the conversation, and who merely were publishing truthful information on a matter of public concern. Whatever interest government had in promoting and protecting individual privacy interests could not overcome the right to publish this information. Ultimately, the Lochnerism tag is inappropriate in discussing a case such as Bartnicki. One could disagree with the decision (although I argue it was rightly decided) and one could disagree with the balance the courts have struck between free expression and privacy. But slapping the Lochner label on the decision merely freezes the conversation and does not allow for meaningful discussion of what that proper doctrinal and normative balance should be. This paper was part of a symposium entitled First Amendment Lochnerism? Constitutional Limitations on Economic Regulation of Communications, Information, and Technology Industries, at Northern Kentucky University, Salmon P. Chase College of Law, in March 2006.

Unjustly Usurping the Parental Right: Fields V. Palmdale School District

Abstract: The right of a parent to control his child's upbringing is one of the few fundamental rights recognized by courts as protected under the doctrine of substantive due process (1) Rooted in vague pronouncements made in two cases decided in the 1920s, Meyer v Nebraska (2) and Pierce v Society of Sisters, (3) this amorphous parental right has never been clearly defined by the Supreme Court (4) This lack of guidance has proven especially troublesome in the context of public schools where parents have attempted to shield their children from school mandates ranging from dress codes (5) to sex education (6) Were parental rights to dominate school interests, public education would become untenable, as each parent would effectively hold veto power over the school's curriculum Thus, many courts have envisioned the Meyer-Pierce right as a balance between the competing interests of the parents and the schools (7) Yet not until Fields v Palmdale School District (8) did a federal appellate court establish a bright-line rule for parental rights claims relating to a public school's actions In Fields, Judge Reinhardt of the Court of Appeals for the Ninth Circuit held--rousing much controversy (9)--that "the Meyer-Pierce right does not extend beyond the threshold of the school door" (10) Though described by some as a restrained opinion, (11) Fields construes precedent broadly, ignores parental interests, and emasculates the Meyer-Pierce right in the public school setting Instead of cutting off parental rights inside public schools, the court should have recognized the delicate interplay between the difficult job of educating students from differing backgrounds and the parental right to inculcate moral standards in their own children (12) When the parental interest asserted is fundamentally central to the parent-child relationship, the public school must not be given a free pass This case began when Kristi Seymour, a volunteer mental health counselor at the Mesquite Elementary School and a master's student in psychology, developed and administered a psychological survey for first, third, and fifth grade students with the goal of "establish[ing] a community baseline measure of children's exposure to early trauma" (13) Ten of the survey questions involved sexual topics (14) Prior to the administration of the survey, Seymour sent letters informing the parents of the survey, explaining its goals, and asking for parental consent (15) Though Seymour's letter noted that the survey was intended to establish a baseline measure of student exposure to "early trauma (for example, violence)" and that the questions might make a student "feel uncomfortable," (16) there was no mention of the survey's sexual content (17) After the school district approved the survey, Seymour administered it to the students, aged seven to ten, in the elementary school during school hours (18) Parents of the children who participated in the survey learned of the survey's sexual content and alleged that had they known of the true nature of the survey, they would not have permitted their children to participate (19) After pursuing an unsuccessful tort claim against the Palmdale School Board, they filed suit in the District Court for the Central District of California, alleging violations of their federal constitutional right to privacy (20) The court, acknowledging the Meyer-Pierce right, stated that the liberty interest asserted by plaintiffs--of "controlling the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs" (21)--did not exist (22) Pointing to the First Circuit's decision in Brown v Hot, Sexy & Safer Productions, (23) the district court distinguished the asserted liberty interest from those in Meyer and Pierce, finding, as did the Brown court, that Meyer and Pierce only "'evince the principle that the state cannot prevent parents from choosing a specific educational program' …