Supremacies and the Southern Manifesto

Justin Driver

92 Texas L. Rev. 1053

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In March 1956, the overwhelming majority of senators and congressmen from the former Confederate states joined forces to issue the Southern Manifesto. That document marshaled a series of constitutional arguments contending that the Supreme Court incorrectly decided Brown v. Board of Education. Legal scholars initially lavished considerable attention on the Manifesto. Today, however, the Manifesto no longer occupies a central place in the American legal imagination. No law review article, or any other work written by a law professor, has appeared in more than fifty years that examines the Manifesto in a sustained fashion. Drawing on archival and other primary sources that law professors have previously neglected, Professor Driver contends that the Manifesto should be restored to a prominent position in legal scholarship because the document serves to recast two prominent debates that have occupied constitutional law scholars for decades. First, analyzing the Manifesto reveals that many southern politicians were far more legally sophisticated, calculating, and shrewd in defending white supremacy than legal scholarship generally suggests. Second, examining the remarkable public debates generated by the Manifesto demonstrates that, contrary to popular constitutionalism’s account, widespread support for judicial supremacy predated the Supreme Court’s articulation of the concept in Cooper v. Aaron. Although it may be tempting to view the Manifesto as promoting ideas that have no connection to current conditions, Professor Driver argues that the document continues to have resonance within the modern constitutional order.

The Lost World of Administrative Law

Daniel A. Farber & Anne Joseph O’Connell

92 Texas L. Rev. 1137

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In this Article, Professors Farber and O’Connell argue that the reality of the modern administrative state diverges considerably from the series of assumptions underlying the Administrative Procedure Act (APA) and classic judicial decisions that followed the APA. These assumptions called for statutory directives to be implemented by one agency led by Senate-confirmed presidential appointees with decision-making authority. The implementation (in the form of a discrete action) is presumed to be through statutorily mandated procedures and criteria, with judicial review to determine whether the reasons given by the agency at the time of its action match the delegated directions. They describe in depth this lost world on which current administrative law is based. They go on to explain how the realities of the modern administrative state have come to differ greatly from the intended circumstances. They then weigh the benefits and costs of this shift, tentatively concluding that the costs trump the benefits. Finally, they conclude that returning to this lost world is impossible and instead propose some possible reforms in all three branches of the federal government to make the match between current realities and administrative law stronger.

The Architects of the Gideon Decision: Abe Fortas and Justice Hugo Black

Abe Krash

92 Texas L. Rev. 1191

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In this Essay, Professor Krash examines the problems that Abe Fortas, the advocate for Clarence Gideon before the Supreme Court, and Justice Hugo Black, the writer of the opinion in the Gideon v. Wainwright decision, faced when addressing the Gideon issue and the manner in which they resolved these problems.

Retuning Gideon’s Trumpet: Telling the Story in the Context of Today’s Criminal-Justice Crisis

Jonathan A. Rapping

92 Texas L. Rev. 1225

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In this Essay, Professor Rapping reexamines the message of Anthony Lewis’s book Gideon’s Trumpet in light of today’s criminal-justice system. He argues that today’s system is even less fair and humane than the system that Gideon faced. However, Professor Rapping believes that the right to counsel is just as important today as it has ever been. He posits that the system needs a dedicated and well resourced staff of public defenders to adequately protect the poor and indigent from the system. Only with such an army of defenders, Professor Rapping argues, can the criminal justice system live up to the lofty goals that Anthony Lewis hoped to achieve.

Bridging the Information Gap: The DOJ’s “Pattern or Practice” Suits and Community Organizations

Alexandra Holmes

92 Texas L. Rev. 1241

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The Violent Crime Control and Law Enforcement Act of 1994 allows the Department of Justice to bring a complaint, codified in §14141, against police departments that have consistent records of police brutality. This powerful tool, however, has been somewhat limited by the dearth in information about which police departments are in need of the Department of Justice’s intervention. In this Note, Ms. Holmes examines traditional remedies for police brutality such as the exclusionary rule, § 1983 claims, criminal prosecution, and civilian oversight models, and explains the advantages that § 14141 has over these measures. She then details the resources problem that the Department of Justice faces in pursuing § 14141 litigation. Finally, Ms. Holmes examines the feasibility and desirability of providing the Department of Justice with needed information by implementing a model of information gathering by community groups.

Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: “Clearly Establishing” the Law Through Civilian Oversight of Police

Ryan E. Meltzer

92 Texas L. Rev. 1277

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Since the Supreme Court ended the mandatory merits-first approach instituted in Saucier v. Katz, scholars have argued that the development of constitutional norms could come to a standstill. In this Note, Mr. Meltzer argues that the work of civilian external investigatory oversight bodies can serve as at least a partial antidote to this possible constitutional stasis. In particular, Mr. Meltzer advocates for the investigative findings and policy recommendations of agencies like the New York Civilian Complaint and Review Board to be given at least the same weight as internal police regulations and advisory reports by external compliance agencies, and possibly as much weight as regional appellate court opinions, in the qualified immunity analysis. Mr. Meltzer goes on to show that not only is this proposal consistent with the purposes of § 1983 litigation and the qualified immunity doctrine, but the work it envisions is already taking place at oversight boards around the nation. He then argues that the sole structural changes necessary to optimally implement this proposal relate to the formalization and publication of the agencies’ findings and recommendations.

Treaty Termination and Historical Gloss

Curtis A. Bradley

92 Texas L. Rev. 773

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The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers.  The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political–branch practice.  This practice, moreover, has developed largely without judicial review.  Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law, rather than merely political happenstance.  Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings, but also how these understandings can change.  Whereas it was generally understood throughout the nineteenth century that the termination of treaties required congressional involvement, the consensus on this issue disappeared in the early parts of the twentieth century, and today it is widely (although not uniformly) accepted that presidents have a unilateral power of treaty termination.  This shift in constitutional understandings did not occur overnight or in response to one particular episode but rather was the product of a long accretion of Executive Branch claims and practice in the face of congressional inaction.  This article examines the way in which historical practice has shaped the constitutional debates and understandings concerning this issue and is meant to help shed light on some of the interpretive and normative challenges associated with a practice-based approach to the separation of powers.

Tax, Command . . . or Nudge?: Evaluating the New Regulation

Brian Galle

92 Texas L. Rev. 837

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This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation.  Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match revenues and informational benefits taxes can provide.  Similarly, writers in the law and economics tradition argue that fines are generally superior to nonpecuniary punishments.

Drawing on prior work in the choice-of-instruments literature, and contrary to popular wisdom, Professor Galle shows that nudges may out-perform fines, other Pigouvian taxes, or subsidies in some contexts.  These same arguments may also imply the superiority of some traditional “command and control” regulations over their tax or subsidy alternatives.  Professor Galle then applies these lessons to a set of contemporary policy controversies, such as New York City’s cap on beverage portion sizes, climate change, retirement savings, and charitable contributions.