Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts "comply" with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court's ability to craft legal doctrines that both shape a trial court's initial decision and increase the efficacy of appellate monitoring. After identifying numerous strategies for increasing lower court control, this Article argues that appreciating the links between them helps illuminate recent developments in three areas of public law - the constitutional law of punitive damages; the rules governing "officer suits" brought under 42 U.S.C. § 1983; and the concept of "reasonable" searches and seizures under the Fourth Amendment.
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left...
This essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
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History and precedent tell us that the just compensation requirement has been implemented by a complex network of remedies providing multiple avenues...
A large segment of the political left identifies as “progressive,” but what does a belief in progress entail? This short essay, written for a...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Neil Siegel has written a grand...
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the...
In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove...
After a term in which the conservative Roberts court swept aside the Chevron doctrine, a decision that will clip federal agencies’ authority to enact...
In Cantero v. Bank of America, the US Supreme Court declined to decide whether Bank of America Corp. must pay interest on New York mortgage borrowers’...
The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine of statutory interpretation that it had...
On June 27, 2024, the U.S. Supreme Court dismissed a case brought by the federal government regarding whether Idaho’s abortion ban conflicts with a...
Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding...
Our perceptions of what we owe each other turn somewhat on whether we consider “another” to be “an other”—a stranger and not a friend. In this essay...