Constitutional Claims Research Articles

Are Unions a Constitutional Anomaly?

The Supreme Court’s decision last term in Harris v. Quinn is its latest, and surely not its last, of dozens of encounters since the 1940s with the issue of mandatory union fees – fees that individuals may be required to pay as a condition of employment to the union that represents them in collective bargaining. Along the way to striking down the “agency fee” in Harris on First Amendment grounds, the Court proclaimed the current agency fee regime, blessed many times by the Court itself, to be an “anomaly.” This Article asks whether and how labor unions are themselves “anomalies” in our legal system, particularly in their constitutional entitlements. Its answer is a qualified and complicated “yes.” A solution to the agency fee problem, and to other constitutional puzzles in labor law, lies in a deeper understanding of how and why unions are distinctive in our legal system – distinctive even among private entities with public regulatory functions, which have frequently provoked constitutional controversy. To begin with, unions are voluntary associations of workers with constitutional entitlements to freedom of expression and associational autonomy. On the other hand, unions are also regulatory actors subject to a constellation of sui generis rights, powers, restrictions, and duties under U.S. labor law – a quid pro quo by which the labor laws both constrain and empower unions. Whatever the wisdom of the particular quid pro quo embodied in the labor laws – and it has been criticized from both ends of the political spectrum – it provides an essential context for the adjudication of constitutional claims by and against unions. This Article calls for reframing those constitutional claims to include both the quid and the quo of labor law – not only the alleged burdens that the labor laws impose on unions or individuals, but also any logically linked benefits or powers it confers on the claimant. The proposed analysis recasts not only the agency fee controversy and the related puzzle posed by state right-to-work laws, but also recurring challenges to the constitutionality of restrictions on union speech and recent efforts to bring “worker centers” under the umbrella of labor law. At the same time it offers clues to the future of unions and labor law if the Court continues down the path foreshadowed in Harris.

Are Unions a Constitutional Anomaly?

This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its answer is a qualified and complicated “yes.” Unions are indeed distinct in our legal system—distinct even among private entities with public regulatory functions, which have frequently provoked constitutional controversy. On the one hand, unions are voluntary associations of workers with constitutional entitlements to freedom of expression and associational autonomy. On the other hand, unions are both regulated and regulatory actors within a statutory scheme that sets them far apart from other voluntary associations. They are subject to a sui generis constellation of rights, powers, restrictions, and duties—a quid pro quo that both constrains and empowers unions, and that is embodied in the paradigmatic case that is the central focus here, in the National Labor Relations Act, the Taft-Hartley Act, and the Landrum-Griffin Act. Whatever the wisdom of that quid pro quo— and it has been criticized from both ends of the political spectrum—it provides an essential context for adjudicating constitutional claims by and against unions. This Article calls for reframing those constitutional claims to include both the quid and the quo of labor law—not only the alleged burdens that the labor laws impose on unions or individuals, but also any logically linked benefits or powers it confers on the claimant. If the alleged burden is logically linked to some corresponding benefit or power, the latter may offset or justify the former, and lower the level of constitutional scrutiny required. Rigorous attention to both the additions to and subtractions from unions’ entitlements under the labor laws, along with a cautious approach to the threshold question of state action, is necessary to preserve the residual yet fundamental autonomy interests of unions. The proposed analysis recasts not only the agency fee controversy and the related puzzle posed by state “right-to-work” laws, but also recurring challenges to the constitutionality of restrictions on union expression and recent efforts to bring “worker centers” under the umbrella of labor law. At the same time, it offers clues to the future of unions and labor law if the Court continues down the path foreshadowed in Harris.

Disentangling Mich. Ct. R. 6.502(G)(2): The 'New Evidence' Exception to the Ban on Successive Motions for Relief from Judgment Does Not Contain a Discoverability Requirement

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language of section 6.502(G)(2) and the Michigan Supreme Court's opinion in People v. Cress, Michigan courts have started conflating the four-prong Cress legal standard with section 6.502(G)(2)'s “new evidence” exception to the ban on successive motions. This conflation imposes an additional discoverability element on the “new evidence” exception: a court will dismiss a petitioner's motion as successive if the petitioner could have discovered the evidence underlying the motion through the exercise of reasonable diligence. This Note demonstrates that the conflation of section 6.502(G)(2) and the Cress standard, and the resulting imposition of an additional discoverability requirement on the “new evidence” exception, is plainly wrong. It contradicts the text and structure of the Michigan Court Rules and imposes unintended adverse consequences on criminal defendants seeking to vindicate their constitutional rights.

The Public–Private Distinction: Insights for Public Administration from the State Action Doctrine

Public administration scholars continue to grapple with how and why public organizations differ from private organizations. The judiciary deals with similar questions in ruling on constitutional claims that apply exclusively to state actors. The authors consider similarities and differences between scholarly and judicial approaches, adding to the body of research attempting to capture the complexities of the public–private distinction. The application in this article includes the coding of seminal court decisions and qualitative comparative analysis (QCA) to find combinations of causal conditions that lead to state action rulings. The specifics revealed through QCA provide valuable lessons for extending public norms and preserving constitutional protections when outsourcing public services.

Young Ireland and Irish Revolutions

This paper gives an overview of the development of the republican armed force tradition in Irish politics from the 1790s. It concludes that while Wolfe Tone and Emmet may have been inspirational, it was the experiences in politics and developments in political theory stemming from the 1840s Young Ireland movement that had the greatest impact. Though the 1848 rebellion led by William Smith O’Brien has often been derided by historians, it was a pivotal event which led directly to the foundation of Fenianism, which in turn led directly to the Land League revolution 1879-82 and indeed the 1916 Rising. The influence of James Fintan Lalor is highlighted as it was Lalor who came up an alternative formula to constitutional agitation arguing that England’s treatment of Ireland had given the Irish a moral right to a legal tabula rasa over both land ownership and constitutional claims.

Prospects for Constitutionalization of the WTO

The WTO is regarded as one of the few successes of (proto-) constitutionalism in response to globalization. However, the rapid deepening of economic integration that has occurred in recent decades has meant that the relevant civil society is less obviously well-represented by nation-state representatives, while the expansion in WTO membership and its coverage implies a constitutional claim that neither the WTO process nor the resulting structure supports. This paper characterizes the challenges confronting the WTO through the lens of constitutionalization. It discusses the link between globalization and interest in the WTO; what constitutionalization might mean for the WTO; and considers two models of constitutionalization in the WTO: an “English” model of court made law without a discrete constitutional moment; and an “American” model of a constitutional convention.

The Public Law of Restitution

Restitution as the response to unjust enrichment has been available for a long time. As a body of law, it has mainly related to transactions between private entities. The decision of the House of Lords in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 changed the law of restitution as it had developed in the UK up to that point. It did this by holding that an unlawful demand for a payment of tax which was not due was an unjust factor capable of making out unjust enrichment and enabling the claimant to obtain restitution of the money paid and interest. This government-only unjust factor operates in a fashion which is distinct from unjust factors which focus on the intention of the claimant to transfer wealth. Instead it asks whether the transfer of money was consequent on an unlawful demand. Woolwich has not as yet been adopted in Australia, but this article argues that it should be, albeit not as a direct constitutional claim. It further discusses the importance of Woolwich as a basis for restitution consequent on the use of soft law, which is a pervasive and highly effective means of regulation which otherwise results in almost no legal consequences.

Prohibición del uso de animales en circos en México. Síntesis del Acuerdo para resolver los Autos del incidente de suspensión relativo al Juicio de Amparo indirecto promovido por la UNEAC contra la Ley Estatal de Fauna del Estado de Morelos

The National Union of Entrepreneurs and Artists of Mexicans Circuses (Civil Association) lodged a constitutional claim against the approval, discussion, expedition, sanction, enactment, endorsement and publication of the State Law on Fauna for the State of Morelos, which prohibits the use of animals in circuses. The Judge decided to deny the requested suspension based on weighting the particular interest of the Rights of the Circus Association to develop their preferred economic activity (including the use of animals) against the interest that society has toward avoiding the suffering and mistreatment of animals, concluding that the latter had priority and should prevail over the interests of this Circus Association.

Joining the Party for a More Powerful Left

Joining the Party for a More Powerful Left

Adjudicating Rights-Based Constitutional Claims: The Morality of Human Rights and the Power of Judicial Review

[This piece has been superseded by Michael J. Perry, A Theory of Judicial Review (2016), http://ssrn.com/abstract=2624978.]I have recently argued, in my new book and elsewhere, that both capital punishment and excluding same-sex couples from civil marriage violate the constitutional law of the United States. See Perry, Human Rights in the Constitutional Law of the United States (Cambridge University Press, 2013). Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage — or of any other law or public policy — necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right. What understanding do my arguments rely on — my arguments about capital punishment and same-sex marriage? I address that question in this paper.This paper began partly as a reflection on Mark Tushnet’s distinction between what he calls “pseudo-Thayerian review” and “true Thayerian review.” According to Tushnet, “[p]seudo-Thayerian review occurs when the courts ask, ‘Did the legislature make a clear error in determining — if it did — that the legislation was consistent with the Constitution as we interpret it?’ In this version, the courts make an independent judgment about what the Constitution means, and then ask whether a rational legislature could believe that the statute at issue was consistent with the Constitution so interpreted. In pseudo-Thayerian review, that is, the courts have the final (or only) say on what the Constitution means. True Thayerian review, in contrast, give the (rational) legislature a role in constitutional interpretation. The truly Thayerian court asks, ‘Putting aside our own views about what the Constitution means, could a rational legislature believe that the statute in question is consistent with some reasonable interpretation of the Constitution — again, even if that interpretation is not one that we ourselves would adopt?’” Tushnet’s distinction between “pseudo-Thayerian review” and “true Thayerian review” is too simple to do justice to the complex question of judicial deference. Or so, at least, I contend in this paper.As the title of this paper indicates, my principal concern here is the adjudication of constitutional claims based on rights norms, as distinct from the adjudication of constitutional claims based on structural norms — based, that is, on either federalism norms or separation-of-powers norms.I have recently posted two related papers to SSRN: Why Capital Punishment Violates the Constitutional Law of the United States (2013), http://ssrn.com/abstract=2340682; David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States (2014), http://ssrn.com/abstract=2352516.

Answering the 'Serious Constitutional Question': Ensuring Meaningful Review of All Constitutional Claims

Answering the 'Serious Constitutional Question': Ensuring Meaningful Review of All Constitutional Claims

Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes

Barack Obama campaigned for the presidency in part on a platform of promising to reverse the constitutional excesses of the second Bush presidency. Yet critics of the former law school professor – from both left and right – have been quick to accuse Obama of abandoning that promise by accepting, embracing, and even advancing expansive executive power claims. This paper will examine these criticisms by comparing Bush and Obama constitutional power claims and actions in the areas of war powers, signing statements, and the veto power.

Is Guilt Dispositive? Federal Habeas after Martinez

Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. It has been said, by Oliver Wendall Holmes among others, that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that post-conviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided.Over the last forty years the habeas landscape has changed so dramatically — both through statutory and common law limits on the writ — that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure has evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases from the last couple of years — Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan — signal a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and in particular argues that they may provide a roadmap for a proceduralist approach to modern habeas — that is, habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez-trilogy may be similarly important in reversing habeas’ four-decade-long infatuation with innocence.

Misunderstood, Misconstrued, and Now Clearly Dead: The 'Political Question Doctrine' in Cases Arising in the Context of Foreign Affairs

Lower federal courts often cite the “political question doctrine” when dismissing as nonjusticiable individual rights cases arising in the context of foreign or military affairs, especially since the 1962 case of Baker v. Carr. Similarly, such courts have inappropriately begun citing “special factors” counselling hesitation in refusing to recognize constitutional claims (“Bivens claims”) in similar foreign policy contexts. However, a review of 200 years of history reveals that the Supreme Court has never applied the so-called “political question doctrine” as a true justiciability doctrine to dismiss individual rights claims, even those arising in the context of foreign or military affairs. In fact, the Supreme Court has almost always rejected the “political question doctrine” as a basis to preclude adjudication of individual rights claims, even in the context of foreign or military affairs. Although the Supreme Court has invoked a “political question doctrine” in some cases, a close review of those cases demonstrates that rather than dismissing the cases as “nonjusticiable,” the Court in fact adjudicated the case by finding that either the executive or Congress acted constitutionally within their power or discretion. Lower court, and some scholars, are misreading these Supreme Court cases by citing them in support of dismissal based on the doctrine. The recent post-9/11 Supreme Court cases of Hamdi v. Rumsfeld, Rasul v. Bush, and Bush v. Boumediene further demonstrate that the doctrine does not exist as a nonjusticiability doctrine in individual rights claims (if it exists as such at all), even in those involving foreign and military affairs. In case there remained any doubt, in 2012 case of Zivotofsky v. Clinton, the Supreme Court for all practical purposes sounded the death knell of the application of the “political question doctrine” as a justiciability doctrine with regard to individual rights claims, including those arising in a foreign policy context. Rather than continuing to erroneously dismiss such cases on political question grounds or using “special factors” as nonjusticiable, federal courts should adjudicate the claims by ruling which branch has what power under the Constitution, and whether the branch acted within its powers. This is an important function of the courts, and one vital to legal and political transparency and democracy. Indeed, this is the approach the Supreme Court has consistently taken – even if the Court has not always well-articulated this approach - and which it affirmed in Zivotofsky.

Cognitive externalism meets bounded rationality

When proponents of cognitive externalism (CE) turn to empirical studies in cognitive science to put the framework to use and to assess its explanatory success, they typically refer to perception, memory, or motor coordination. In contrast, not much has been said about reasoning. One promising avenue to explore in this respect is the theory of bounded rationality (BR). To clarify the relationship between CE and BR, we criticize Andy Clark's understanding of BR, as well as his claim that BR does not fit his version of CE. We then propose and defend a version of CE—“scaffolded cognition”—that is not committed to constitutive claims about the mind, but still differs from mainstream internalism. Finally, we analyze BR from our own CE perspective, thereby clarifying its vague appeals to the environment, and argue that cognitive internalism cannot explain important aspects of the BR program.

First Amendment Rights for Publishers and the Distribution of Unsolicited Magazines to Inmates

This Article discusses whether inmates have a First Amendment interest in receiving unsolicited publications, and whether a publisher has a First Amendment interest in distributing unsolicited publications. Part II will discuss the history of prisoners’ First Amendment rights, specifically in relation to publications and communications, and how the standard for First Amendment violations of prisoner rights has evolved over time. Part III will focus on the Supreme Court case Turner v. Safley and how the test articulated in Turner applied to cases that followed. Part IV will address whether the Turner standard was the appropriate test to apply to whether publishers, and not inmates, have a First Amendment interest in distributing unsolicited publications specifically in reference to the Ninth Circuit case Hrdlicka v. Reniff. The Supreme Court specifically stated that the Turner test was created “to formulate a standard of review for prisoners’ constitutional claims . . . .” In Hrdlicka, the publishers of CJA, and not the prisoners, commenced the action, and thus the Turner test should not apply. Furthermore, a substantial issue of material fact does not exist in Hrdlicka, and the Ninth Circuit should have affirmed summary judgment. The last section of Part IV will discuss the standard that should have been applied in Hrdlicka.

Flavia Agnes, Family Law and Constitutional Claims; Flavia Agnes, Marriage, Divorce and Matrimonial Litigation

Flavia Agnes, Family Law and Constitutional Claims; Flavia Agnes, Marriage, Divorce and Matrimonial Litigation

Team Prayer in Sports: Why an Action-Based Inquiry into a Coach’s Conduct Should Prevent Courts from Following Borden’s Confusion About the Reasonable Observer

Borden v. School District of the Township of East Brunswick, a 2008 Third Circuit case, provides the latest major appellate opinion on coach involvement in team prayer. The Third Circuit concluded that a coach’s actions with respect to team prayer must be evaluated in light of the coach’s history of involvement with religious practices. This comment attempts to explain that a judicially created reasonable viewer in Establishment Clause cases dealing with team prayer should only take account of a coach’s actions and not of his history. Part II of this comment will explain the relevant Supreme Court precedents regarding prayer in public schools. Part III will closely dissect two major federal circuit decisions addressing coach involvement in team prayer – the Fifth Circuit’s opinion in Doe v. Duncanville and the Third Circuit’s opinion in Borden. Part IV will explain why Judge McKee’s concurring opinion in Borden captures the appropriate method for courts to adopt when reviewing similar cases. Further, Part IV will discuss why Judge McKee’s approach will remove potential barriers for students and parents to confidently bring forth constitutional claims against their school district, when they otherwise would not have.

The D.C. Circuit's EPIC Failure in Electronic Privacy Information Center v. United States Department of Homeland Security

This Note critiques the D.C. Circuit’s faulty logic in analyzing the statutory and constitutional claims against the TSA’s use of body scanners in Electronic Privacy Information Center v. United States Department of Homeland Security. The D.C. Circuit’s flawed opinion in this case is particularly troublesome because it is the only appellate court opinion to date that has analyzed the substantive issues surrounding the TSA’s use of body scanners.Plaintiffs made statutory claims against the TSA's use of body scanners under the Video Voyeurism Protection Act, the Privacy Act, the Homeland Security Act of 2002, and the Religious Freedom Restoration Act. Plaintiffs also made a Fourth Amendment claim. The court dismissed all the claims. This Note does not argue whether or not the court's outcome was correct -- it may be that the TSA's use of body scanners does not violate the relevant statutes or the Fourth Amendment. Instead the problem with the D.C. Circuit's opinion is that its bad logic, misinterpretation of case law, or ignorance of relevant statutes casts doubt on its holdings. Especially as an issue of first impression, the D.C. Circuit’s ruling in Electronic Privacy Information Center v. United States Department of Homeland Security is so flawed that no future court should rely on it as precedent

The multilevel perspective of Human Rights in the new Bolivian Constitution

The new structure of the Constitutional Rights raised by the New Bolivian Constitution has assumed in its interpretation that there are no differences, concerning the levels of protection and guarantee, between fundamental rights and any other sorts of rights. The treatment that International Treaties concerning Human Rights get in the moment to join the Constitutional Bloc responds to an adequate assess of the level of protection and guarantee of rights as expected in an international level, in this very sense the application and interpretation that is preferably granted ensures an effective monitors compliance Nevertheless, it is easy to notice the existence of certain limits that are imposed by the claim that the State is the one, through the Constitutional Court of Bolivia, who ultimately settles in a last resort the interpretation keys of human rights in favor of its sovereignty. In this sense we can find a hermeneutic timid activity of the mentioned Judicial Organ in favor of international Human Rights sources, in which we see a greater need of openness and willingness to respond to the current constitutional claims. Key-words: Constitution; Human Rights; interpretation.