Neal Devins - Academia.edu (original) (raw)
Papers by Neal Devins
Over the next few months, the Supreme Court will spend far more time thinking about the constitut... more Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA) than Congress did when enacting the ACA. Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding. Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions (“Party Polarization”), lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress. In this Essay, I will provide a descriptive account of Congress’s general disinterest in the Constitution when enacting the ACA. In so doing, this Essay will serve as a case study that bolsters th...
Maryland Law Review, 2006
Northwestern University Law Review, 2012
ABSTRACT-Congress paid nearly no attention to the Constitution when enacting the Affordable Care ... more ABSTRACT-Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress's indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in "public goods" like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress's interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority party to raise constitutional objections to legislation. Third, there is no federalism constituency in Congress that pushes lawmakers to take federalism into account when enacting legislation. For this very reason, Republican...
LSN: Judicial Decisionmaking (Topic), 2016
The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increas... more The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.”This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising...
Minnesota Law Review, 2006
Over the past two years, Congress has considered proposals to strip federal courts of jurisdictio... more Over the past two years, Congress has considered proposals to strip federal courts of jurisdiction over same-sex marriage,1 the Pledge of Allegiance,2 judicial invocations of international law,3 the public display of the Ten Commandments,4 and legal challenges filed by “enemy combatants.”5 And while none of these proposals were enacted,6 some of them were approved by the House of Representatives.7 More striking, Congress expressed its disapproval of state court decision making in the Terri Schiavo case by expanding federal court jurisdiction.8 Specifically, rather than accept state court findings that Terri Schiavo, then in a persistent vegetative state,9 would rather die
Notre Dame Law Review, 1984
Law and contemporary problems, 2004
I INTRODUCTION Recent (1995-2002) Rehnquist Court decisions striking down federal laws can be tie... more I INTRODUCTION Recent (1995-2002) Rehnquist Court decisions striking down federal laws can be tied to "majoritarian" social and political forces. (1) In explaining why I think this is so, I will not defend these decisions. It may be, for example, that these decisions were wrongly decided, or inconsistent with what the Justices have said in other decisions, or both. Moreover, these decisions may well reflect the personal preferences of the Justices voting to invalidate these laws. Instead, my point is that majoritarian forces help explain why the Rehnquist Court seemed so willing to strike down federal laws. Before turning to the Rehnquist Court and to the social and political forces that impact its decision-making, it is useful to provide some background to my project. Having spent much of the past sixteen years examining how constitutional law is shaped by both judicial and nonjudicial actors, I am quite convinced--as Robert Dahl put it in 1957--that the Court's const...
Michigan Law Review, 2007
Vanderbilt Law Review, 2016
This article evaluates a common criticism of Roe v. Wade, that the decision unnecessarily perpetu... more This article evaluates a common criticism of Roe v. Wade, that the decision unnecessarily perpetuated counterproductive, divisive backlash by seeking to short circuit the political process and mandate an abortion code generally unacceptable to the nation. Left-leaning academics, advocates, and judges have made this criticism — including Ruth Bader Ginsburg, Cass Sunstein, Jeff Rosen, Mike Klarman, Gerald Rosenberg, and Bill Eskridge. In earlier writings, I too criticized Roe on these grounds and, correspondingly, celebrated Pennsylvania v. Casey for recalibrating abortion rights in ways that matched popular opinion and elected government preferences.By contrasting state practices around the time of Roe (when there was comparatively little polarization) to state practices today (when there is extreme polarization), I will argue both that an indeterminate Casey-like standard would have been better suited to the less polarized 1973 period and that a rule-like Roe standard would be bett...
Case Western Reserve law review, 1997
Northwestern University Law Review, 2004
I. INTRODUCTION There is no federalism constituency within Congress. Not only do federal lawmaker... more I. INTRODUCTION There is no federalism constituency within Congress. Not only do federal lawmakers and national lobbyists gladly sacrifice federalism in order to advance other interests, but state officials also "have systematic political interests that often cause them to undermine federalism."1 In explaining why both state and federal officials discount federalism, John McGinnis and Ilya Somin's Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System provides an important and persuasive critique of the claim that the national political process inevitably protects federalism.2 My comments will extend Federalism v. States Rights in two ways. First, I will posit an alternative explanation as to why the national political process does not value structural federalism. In particular, I will argue that even if the American people were well informed about the benefits of federalism, they would still trade off those benefits in order to secure othe...
Columbia Law Review, 2012
Modern Justice Department opinions insist that the executive branch must enforce and defend laws.... more Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the DOMA, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its sup...
Vanderbilt Law Review, 1983
Over the next few months, the Supreme Court will spend far more time thinking about the constitut... more Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA) than Congress did when enacting the ACA. Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding. Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions (“Party Polarization”), lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress. In this Essay, I will provide a descriptive account of Congress’s general disinterest in the Constitution when enacting the ACA. In so doing, this Essay will serve as a case study that bolsters th...
Maryland Law Review, 2006
Northwestern University Law Review, 2012
ABSTRACT-Congress paid nearly no attention to the Constitution when enacting the Affordable Care ... more ABSTRACT-Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress's indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in "public goods" like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress's interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority party to raise constitutional objections to legislation. Third, there is no federalism constituency in Congress that pushes lawmakers to take federalism into account when enacting legislation. For this very reason, Republican...
LSN: Judicial Decisionmaking (Topic), 2016
The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increas... more The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.”This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising...
Minnesota Law Review, 2006
Over the past two years, Congress has considered proposals to strip federal courts of jurisdictio... more Over the past two years, Congress has considered proposals to strip federal courts of jurisdiction over same-sex marriage,1 the Pledge of Allegiance,2 judicial invocations of international law,3 the public display of the Ten Commandments,4 and legal challenges filed by “enemy combatants.”5 And while none of these proposals were enacted,6 some of them were approved by the House of Representatives.7 More striking, Congress expressed its disapproval of state court decision making in the Terri Schiavo case by expanding federal court jurisdiction.8 Specifically, rather than accept state court findings that Terri Schiavo, then in a persistent vegetative state,9 would rather die
Notre Dame Law Review, 1984
Law and contemporary problems, 2004
I INTRODUCTION Recent (1995-2002) Rehnquist Court decisions striking down federal laws can be tie... more I INTRODUCTION Recent (1995-2002) Rehnquist Court decisions striking down federal laws can be tied to "majoritarian" social and political forces. (1) In explaining why I think this is so, I will not defend these decisions. It may be, for example, that these decisions were wrongly decided, or inconsistent with what the Justices have said in other decisions, or both. Moreover, these decisions may well reflect the personal preferences of the Justices voting to invalidate these laws. Instead, my point is that majoritarian forces help explain why the Rehnquist Court seemed so willing to strike down federal laws. Before turning to the Rehnquist Court and to the social and political forces that impact its decision-making, it is useful to provide some background to my project. Having spent much of the past sixteen years examining how constitutional law is shaped by both judicial and nonjudicial actors, I am quite convinced--as Robert Dahl put it in 1957--that the Court's const...
Michigan Law Review, 2007
Vanderbilt Law Review, 2016
This article evaluates a common criticism of Roe v. Wade, that the decision unnecessarily perpetu... more This article evaluates a common criticism of Roe v. Wade, that the decision unnecessarily perpetuated counterproductive, divisive backlash by seeking to short circuit the political process and mandate an abortion code generally unacceptable to the nation. Left-leaning academics, advocates, and judges have made this criticism — including Ruth Bader Ginsburg, Cass Sunstein, Jeff Rosen, Mike Klarman, Gerald Rosenberg, and Bill Eskridge. In earlier writings, I too criticized Roe on these grounds and, correspondingly, celebrated Pennsylvania v. Casey for recalibrating abortion rights in ways that matched popular opinion and elected government preferences.By contrasting state practices around the time of Roe (when there was comparatively little polarization) to state practices today (when there is extreme polarization), I will argue both that an indeterminate Casey-like standard would have been better suited to the less polarized 1973 period and that a rule-like Roe standard would be bett...
Case Western Reserve law review, 1997
Northwestern University Law Review, 2004
I. INTRODUCTION There is no federalism constituency within Congress. Not only do federal lawmaker... more I. INTRODUCTION There is no federalism constituency within Congress. Not only do federal lawmakers and national lobbyists gladly sacrifice federalism in order to advance other interests, but state officials also "have systematic political interests that often cause them to undermine federalism."1 In explaining why both state and federal officials discount federalism, John McGinnis and Ilya Somin's Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System provides an important and persuasive critique of the claim that the national political process inevitably protects federalism.2 My comments will extend Federalism v. States Rights in two ways. First, I will posit an alternative explanation as to why the national political process does not value structural federalism. In particular, I will argue that even if the American people were well informed about the benefits of federalism, they would still trade off those benefits in order to secure othe...
Columbia Law Review, 2012
Modern Justice Department opinions insist that the executive branch must enforce and defend laws.... more Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the DOMA, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its sup...
Vanderbilt Law Review, 1983