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In this Note I argue that the Federal Election Campaign Act’s $5000 limitation on
individual contributions to political committees should be removed. I advance two
main arguments. First, in light of recent campaign finance decisions, the limitation
appears to be unconstitutional as it imposes a limit on First Amendment rights
without being tailored to the government’s interest in preventing quid pro quo corruption.
Second, eliminating the contribution limitation will have previously unrecognized
normative benefits. Smaller PACs representing a variety of viewpoints will
be more able to compete with established corporate and union PACs, and the
volume of accountable political speech may increase as more money is channeled
through PACs to candidates’ hands.

The Supreme Court ruled in Boumediene v. Bush that detainees at Guantanamo
Bay have the right to challenge their detention in habeas corpus proceedings and
that the courts hearing these claims must have some ability to provide “conditional
release.” However, in Kiyemba v. Obama, the United States Court of Appeals for
the District of Columbia ruled that if a detainee cannot be released to his country of
origin or another country abroad, a court sitting in habeas cannot grant the
detainee release into the United States. The court based its determination on the
assumption that the plaintiffs’ request for release implicated “admission,” generally
considered within the purview of the political branches and inappropriate for judicial
review. This Note argues that “parole,” a more flexible mechanism for release
into the United States, is not limited by the admission precedents requiring extreme
deference. This Note then surveys cases in which the judiciary has granted parole as
a remedy, and argues that courts have done so primarily in cases of executive misconduct.
Thus, courts confronting requests for domestic release from executive
detention without a legal basis should consider parole as a remedy distinct from
admission—one that serves a valuable purpose in maintaining a meaningful check
on the Executive.

The Supreme Court began its 2009 Term by addressing the constitutional rights of
corporations. It ended the Term by addressing the incorporated rights of the
Constitution. In Citizens United v. Federal Election Commission, a five-member
majority of the Court held that corporations have a First Amendment right to spend
their own money on political advocacy. A corporation generally is no different than
a natural person when it comes to the First Amendment—at least as it relates to
political speech. In McDonald v. City of Chicago, a plurality of the Court held that
the Second Amendment to the United States Constitution is incorporated through
the Due Process Clause and applies to states and municipalities. Neither the federal
government nor states may prevent persons from keeping and bearing arms in their
homes for self-defense.

Given this new world in both senses of incorporation, the time has come to explore
the issue of Second Amendment rights and the corporate form. This Article will
offer an analysis of the potential Second Amendment rights of the corporation.
And it will, in the process, provide a more systematic critique of corporate constitutional
rights in general.

In the annual James Madison Lecture, Robert Henry, former Chief Judge of the
United States Court of Appeals for the Tenth Circuit, explores Justice John
Marshall Harlan II’s notable dissent in Poe v. Ullman. President Henry carefully
examines Justice Harlan’s method of constitutional interpretation. Refusing to
adopt a “literalistic” reading of the Constitution and instead looking to the “history
and purposes” of a particular constitutional provision, Justice Harlan’s approach
serves as a source of both flexibility and restraint. Of particular importance is
Justice Harlan’s recognition of the role that “living” traditions play in supplying
meaning to the concept of due process of law. What emerges from this probing
review of Justice Harlan’s Poe dissent is a moderate and thoughtful response to
originalism.

This Note contends that the Supreme Court has systematically used the doctrine of
judicial notice to portray the nation’s schools as rife with crisis. Ignoring the record
before it, the Court has relied on the “crisis” it has manufactured to curtail students’
Fourth Amendment rights. Critiquing this practice and likening it to the Court’s
invocation of “emergency” in the context of war and natural disaster, this Note
concludes that the Court ought to be held more accountable for the “facts” that it
judicially notices.

Hundreds of millions of consumer and employment contracts include arbitration clauses, class arbitration waivers, and other terms that modify the rules of litigation. These provisions ride the wake of the Supreme Court’s expansive interpretation of the Federal Arbitration Act (FAA). For decades, scholars have criticized the Court’s arbitration jurisprudence for distorting Congress’s intent and tilting the scales of justice in favor of powerful corporations. This Article claims that the Court’s reading of the FAA suffers from a deeper, more fundamental flaw: It has transformed the statute into a private delegation of legislative power. The nondelegation doctrine forbids Congress from allowing private actors to make law unless they do so through a process that internalizes the wishes of affected parties or that is subject to meaningful state oversight. The FAA as construed by the Court violates this rule. First, companies have invoked the statute to create a parallel system of civil procedure for consumer and employment cases. This river of privately made law not only washes away Congress’s procedural rulemaking efforts but dilutes the potency of substantive rights. Second, although businesses ostensibly impose these rules through the mechanism of contracting—a process normally rooted in mutual consent—the Court’s arbitration case law deviates from traditional contract principles. It funnels consumers and employees into arbitration even when they truthfully claim that they did not agree to arbitrate. Third, despite the fact that the FAA as enacted mandates robust judicial review of privately made procedural rules, the Court has all but abolished this safeguard. This Article concludes that the Court should recognize that the FAA as interpreted raises grave private delegation issues and should thus limit the statute.

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices bemade by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court has manipulated
the application of the Chevron test to find statutory clarity and preclude deference to agencies for exactly this reason. Led by litigants who highlighted the separation of powers implications of the agency’s interpretations, the Court has suggested both that the principles of nondelegation remain a constitutional constraint and that alluding to them, even without resort to some canon of interpretation, is a viable litigation strategy.

This Note exposes and defends the persistent, if unspoken, role played by the principles of nondelegation in the jurisprudence of the administrative state in an era of Chevron deference. It draws a strategic and doctrinal framework from which to challenge agencies’ statutory interpretations and presents a live circuit split involving the authority of the Food and Drug Administration to criminalize certain failures to maintain research records that is a ripe opportunity for applying that framework.

As a result of the War on Drugs, women are disproportionately impacted by the civil sanctions resulting from felony drug convictions. While legislation imposing collateral consequences of felony drug convictions does not explicitly discriminate against women, these laws reflect sex-based institutional biases and are thereby unequal in effect. While some statutes permit a disparate impact theory of sex discrimination, there exists no statutory protection for women in the context of collateral consequences. And because the Equal Protection Clause of the Fourteenth Amendment does not adequately protect against gender-neutral legislation that adversely affects women, raising a constitutional claim is not a viable alternative to statutory protection. In response, this Note sets forth two separate—constitutionally sound—proposals for legislative reform. First, I suggest that in light of historic sex discrimination, a remedial sex-based exemption from penalties imposed by collateral consequences is in order. In recognition of the Court’s distaste for sex-based legislation, however, I alternatively recommend that Congress exempt from collateral penalties ex-offenders who serve as the primary caretakers of their children.

Two legal doctrines govern the suppression of evidence and termination of removal proceedings following constitutional or regulatory violations in immigration enforcement. The Lopez-Mendoza doctrine governs suppression of evidence obtained in violation of constitutional rights. The Accardi doctrine governs suppression of evidence and termination of removal proceedings following violations of regulatory rights. However, the expanding involvement of state and local law enforcement agencies in immigration enforcement, particularly through 287(g) agreements, calls into question the applicability of these two doctrines. This Note analyzes the Lopez-Mendoza and Accardi doctrines in light of the new enforcement context presented by 287(g) agreements; it concludes that reexamination of the Lopez-Mendoza doctrine is required and that full application of the Accardi doctrine is warranted in the 287(g) context.

This brief essay responds to the commentaries by Professor Choudhry, Professor Jackson, and Professors Elkins, Ginsburg, and Melton (“Melkinsburg”) on our article, The Declining Influence of the United States Constitution. We agree with much of the substance of their thoughtful commentaries, especially their calls for methodological pluralism and broader-ranging empirical research. Some of our differences, meanwhile, are matters of emphasis and framing. For example, their point that the U.S. Constitution remains influential upon constitution writing at a high level of abstraction is one that we make ourselves. We also emphasize, however, that highly abstract similarities are no indication that constitutional drafters in other countries find the U.S. Constitution a useful or attractive model to emulate as a practical matter.

Our most significant disagreement lies with two of Melkinsburg’s arguments. First, they contend that we have misinterpreted our empirical findings of declining similarity to the U.S. Constitution as evidence of declining influence. We reject their suggestion, however, that the U.S. Constitution can only be said to have lost influence to the extent that its “essential elements” have been repudiated. No definition of a concept such as influence can be proclaimed exclusively correct by fiat. Moreover, their definition comports neither with intuition nor with our goal of identifying where constitutional drafters today look for inspiration.

Second, they argue that the trends we identify as belonging to the late twentieth century are merely continuations of trends that actually began in the mid-nineteenth century. In our view, their analysis gives insufficient consideration to two dynamics that render post–World War II constitutional trends qualitatively distinct from nineteenth-century trends. Those two dynamics are constitutional proliferation, meaning an explosion in the sheer number of constitutions, and constitutional standardization, or the increasing use of increasingly standard constitutional models that bear limited resemblance to the U.S. Constitution. Constitutional drafting today reflects the emergence of pockets of consensus in a densely populated constitutional environment that simply did not exist in the mid-nineteenth century or even the early twentieth century. Any conclusions that Melkinsburg draw from ostensibly global nineteenth-century data are likely to be disproportionately influenced by the atypical experience of Latin American constitutionalism. Our focus, by contrast, is upon a late twentieth-century process of constitutional standardization that ultimately bypassed the U.S. Constitution in favor of a more genuinely global synthesis.