A Comment on The Role of Precedent in Constitutional Adjudication

Burt Neuborne

86 Texas L. Rev. See Also 51

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In this Comment, Professor Neuborne attempts to place his views within Professor Shapiro’s taxonomy of approaches to constitutional precedent.  While Professor Neuborne believes that constitutional decisions deserve a qualified respect, he does so for different reasons than those offered in Professor Shapiro’s Article.  In Professor Neuborne’s view, adherence to constitutional precedent is not justified by any particular deference to the wisdom of the past but rather by the practical restraint that it imposes on the political power of modern judges.

Precedent as Tactical Weaponry

Michael Stokes Paulsen

86 Texas L. Rev. See Also 56

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In this Comment to Professor Shapiro’s Article, Professor Paulsen—a known skeptic of constitutional stare decisis—colorfully analyzes how different approaches to precedent affect strategic coalition building on a multimember Court.  Under this new tactical theory, Professor Paulsen speculates how his views on constitutional precedent might affect his relative power as a fellow member of Justice Shapiro’s Court.

The History of Section 5 of the Voting Rights Act from Another Perspective

Robert S. Bickerstaff

86 Texas L. Rev. See Also 38

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Professor Robert S. Bickerstaff offers a response to Professor Kousser’s article that includes both a contrary analysis of Supreme Court decisions regarding Section 5 and also a detailed discussion of the precise effects of Section 5 on minority representation by elected officials.  Professor Bickerstaff offers insights based on his thirty-two years of experience representing jurisdictions covered by the election-change review process of Section 5.  Although much has been accomplished, real-world application of Section 5, particularly against the backdrop of partisan politics, has presented new challenges for achieving the goal of meaningful minority participation.

The Year of the Gun

Glenn Harlan Reynolds & Brannon P. Denning

86 Texas L. Rev. See Also 22

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The Supreme Court’s grant of certiorari in the District of Columbia gun-ban case promises to make this Term “The Year of the Gun.”[1]  Though the Court will review many other important cases, the Heller case presents a unique constellation of characteristics: It involves the scope of a right that many Americans regard as highly important, but that has not been signifi­cantly addressed by the Supreme Court before, and it does so in an unusually open national election year, with no incumbent or obvious successor running for president.

 

Though the Court did address Second Amendment issues somewhat in the 1939 case of United States v. Miller,[2] the treatment was limited, and uninformed by opposing counsel because only the federal government was represented.[3]  The Court’s decision in Heller will thus give the Justices a chance to address—or to duck—a number of important Second Amendment issues and may also pose potential difficulties for the Court’s existing jurisprudence of unenumerated rights, in a setting in which the po­litical ramifications are likely to be obvious and immediate.

 

Pick a Card, Any Card

Ronald Mann

86 Texas L. Rev. See Also 26

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In response to Professor Littwin’s Article, Ronald Mann compliments the article’s focus on the consumers of credit cards, rather than the lenders.  Mann cites two important contributions from the article.  The first is the surprising importance of credit cards in maintaining social status in the milieu that Littwin studies.  The second contribution is crystallizing the need for credit-card products that offer real precommitment.

Mann also praises her research on the use of credit cards at the family level, as opposed to the national or company level.  Finally, Mann defends Littwin’s decision to focus on a particular demographic group because the differentiation of credit-card products means that choices available to low-income consumers will be very different from middle- and upper-income consumers.  But Mann wants to broaden the research.  Mann asserts that a targeted project involving respondent-directed sampling should enable reliable analysis of the stability of Littwin’s conclusions over a larger area.

 

A Commentary on Beyond Usury

Cathy Lesser Mansfield

86 Texas L. Rev. See Also 26

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In response to Professor Littwin’s Article, Cathy Mansfield praises the article’s proposed borrower-driven protections.  But Mansfield argues that the article does not provide a solid basis for its conclusion that usury regulation would limit access to credit-card credit for low-income households and so is undesirable from both public-policy and low-income-household perspectives.  Mansfield concludes that Littwin’s proposals are groundbreaking but can only be enhanced by reasonable government rate regulation.

Necessity, Not Autonomy

Mark S. Stein

86 Texas L. Rev. See Also 15

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In his response to Professor Hill’s Article, Mark Stein argues for a somewhat different framing of the substantive due process right advocated by Professor Hill.  Stein favors a right to receive necessary medical treatment free of government interference.  However, he does not believe that the right should apply across the board.  If, in a particular setting, allowing a claim of medical necessity would have negative consequences for social welfare, no right of medical necessity should be recognized.

A View from the Trenches

J. Scott Ballenger

86 Texas L. Rev. See Also 7

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In his response to Professor Hill’s Article, Scott Ballenger discusses issues of medical autonomy in light of his experience as counsel for the Abigail Alliance for Better Access to Developmental Drugs.  While he ultimately agrees with Professor Hill on the existence of a fundamental right to make medical treatment decisions free of unwarranted government interference, he highlights two potential disagreements with the article.  First, he argues for a greater emphasis on the distinction between laws genuinely protecting the public health and those invading purely private medical decisions.  Second, he questions the assumption that the crucial debate in this area involves whether to trust judges or legislatures on issues of medical or scientific fact.

Form, Function, and Justiciability

Anthony J. Bellia

86 Texas L. Rev. See Also 1

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In his response to Professor Siegel’s Article, Professor Bellia takes a closer look at some of the Article’s conclusions.  In particular, Professor Bellia responds to the assertion that congressional power to generate justiciability demonstrates the purposelessness of justiciability doctrines.  Are justiciability doctrines an effective limit on federal power?  If constraining the power of a federal institution can be a legitimate constitutional purpose in itself, does congressional control over justiciability act as a real, and not merely illusory, limit on judicial power?

Professor Bellia examines important historical thought on the subject—including James Madison’s concerns expressed at the Federal Convention and John Marshall’s writings in a number of Marshall Court decisions—as evidence that persons knowledgeable in law reasonably understood the forms that limited judicial power to function as constitutional limitations.  The result places the analysis at the center of a fundamental separation-of-powers debate over the respective roles of Congress and the federal courts.