Constitutional Litigation Research Articles

A Study on Some Issues Concerning the Theory of State's Duty to Protect Citizen's Basic Rights

국가의 기본권보호의무란 국민의 기본권적 법익을 역시 기본권주체인 사인의 위법한 침해 또는 급박한 침해의 위험으로부터 보호할 국가의 의무라고 정의되고 있다. 이 글에서는 국가의 기본권보호의무에 관한 쟁점 중 과소보호금지원칙과 과잉금지원칙과의 관계, 과소보호금지원칙의 심사강도, 그리고 기본권보호청구권의 세 가지 쟁점에 대하여 검토한다. 첫째, 과소보호금지원칙과 과잉금지원칙은 서로 다른 기능을 하는 독립적인 심사기준이다. 따라서 동일한 사안을 두고 가해자와 피해자가 동시에 심판을 청구하는 것은 상정하기 어려우므로, 하나의 사건에서 가해자와 피해자의 각 입장에서 위 두 개의 심사기준을 따로 적용할 이유는 없다. 둘째, 그동안 헌법재판소(다수의견)는 기본권보호의무 사건에서 ‘명백성통제’만을 적용하였다. 그런데 보호의무의 주체가 입법자가 아니라 행정권력이거나, 국가가 국민의 기본권적 법익을 보호하기 위하여 입법을 했는데 그 후에 그 보호수준을 낮추는 입법개정을 한 경우라면 그와 같은 입법개정행위로 인하여 국민의 기본권적 법익의 보호가 위태로워진 것이므로, 위와 같은 경우들에는 명백성통제보다 더 강화된 심사기준인 ‘타당성통제’(납득가능성통제)를 적용해야 한다. 셋째, 우리나라의 헌법과 헌법재판소법 및 헌법재판의 현실에서 보호청구권의 필요성이 인정되지 않는다. 뿐만 아니라, 보호청구권은 독일에서 기본권의 객관법적 측면에서 도출한 국가의 기본권보호의무를 사법적으로 강제하기 위하여 창안한 형식적 개념이므로 그 권리내용 또는 보호영역이 명확하다고 할 수 없다. 나아가, 보호청구권은 재판에 의하여 그 실현을 보장받을 수 있는 구체적 권리로서의 실질을 가진다고 볼 수도 없다. 따라서 보호청구권은 ‘헌법상 열거되지 않았지만 새롭게 인정할 필요성이 있는 기본권’이라고 할 수 없다.It is defined that state s duty to protect citizen s basic rights (hereafter as “the Duty”) is the duty of state to protect citizen s fundamental interests from illegal infringement or urgent danger of such infringement by private individuals. Here occur some issues. Among them this article deals with (a) relationship between the prohibition of minimum protection principle and the prohibition of excessive restriction principle, (b) standard of review of the prohibition of minimum protection principle, and (c) citizen s right to protection of basic rights (hereafter as “the Right”). First: The prohibition of minimum protection principle and the prohibition of excessive restriction principle are independent standards of review because they perform different functions respectively. It is improbable that an offender and a sufferer file a lawsuit or a constitutional complaint on the same case. Therefore it is unnecessary that the Korean Constitutional Court (hereafter as “the Court”) should apply the two principles in one case. Second: The Court (majority opinion) has applied only ‘Evidenzkontolle’ on the Duty case so far. But if the main body of the Duty is not National Assembly but the administrative power, ‘Vertretbarkeitskontrolle’ should be applied which is more intensive than Evidenzkontolle. It should be also applied on the case that once the state enacted a law to protect citizen s basic rights and later amended it to lower the protection level, because the protection of citizen s basic rights was put in danger by the action. Third: The necessity of the Right is not acceptable under the Korean Constitution, Constitutional Court Act and the actuality of constitutional litigation. And the Right is so formal concept that its content or protection range is not clear. Moreover, it does not have a substance as a specific right that can be realized by litigation. Therefore we can t say that even if the Right is not enumerated in Korean Constitution but should be newly admitted as a basic right.

Biowatch Shield, Costs Liability for Abuse of Process and Crossfire Litigation ‒ Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC)

While costs are traditionally dealt with at the tail end of proceedings and invariably in the concluding segment of a court’s judgment, they nevertheless continue to be consequential. This is especially so in respect of how access to constitutional justice is pursued and levered. The outlines of the progressive costs awards jurisprudence in constitutional and public interest litigation are encapsulated in Biowatch Trust v Registrar Genetic Resources (2009 (6) SA 232 (CC) (Biowatch)). Biowatch established the general proposition that in litigation between the State and private parties seeking to assert a fundamental right, the State should ordinarily pay costs if it loses. The Biowatch shield seeks to mitigate the “chilling effects” cost orders could have on parties seeking to assert their constitutional rights – even where unsuccessful. The threat of hefty costs orders may chill constitutional assertiveness. It may deter parties from challenging questionable practices of the State. This is particularly so in a society characterised by disparities in resources and inequality of opportunities. The vindication of fundamental rights is inseparably linked to the transformative process the Constitution envisages. It is now established that the general rule in constitutional litigation is that an unsuccessful litigant in proceedings against the State ought not to be ordered to pay costs. On the other hand, the Biowatch principle also permits exceptions and does not go so far as to immunise all constitutional litigation from the risk of an adverse costs order. A worthy cause or worthy motive cannot immunise a litigant from an adverse costs order for abuse of process or engaging in frivolous or vexatious proceedings.The case note addresses the application of the Biowatch principle in respect of cost orders where a public interest litigant has conducted the proceedings in an abusive, vexatious or frivolous manner, as well as in crossfire litigation. The first-tier question that arises is: can a court impose adverse costs awards on a constitutional litigant where a suit is unmeritorious or there is impropriety in the manner in which the litigation has been undertaken? There is also the delicate issue of costs awards in crossfire disputes. In pith and substance, crossfire disputes involve litigation between a private party and the State, provoked by the latter’s failure to perform its regulatory role but adversely affecting the interests of other private parties. In effect, the knotty question is: can adverse costs orders be made against interveners or parties who become involved in proceedings?

현행 헌법재판제도의 문제점과 개선방안

현행 헌법재판제도의 문제점과 개선방안

Children’s Equality: The Centrality of Race, Gender, and Class

Hierarchies among children dramatically impact their development. Beginning before birth, and continuing during their progression to adulthood from birth to age 18, structural and cultural barriers separate and subordinate some children, while they privilege others. The hierarchies replicate patterns of inequality along familiar lines, particularly those of race, gender, and class, and the intersections of those identities. These barriers, and co-occurring support of privilege for other children, emanate from policies, practices, and structures of the state, including education, health, policing and juvenile justice, and limited social welfare. Reimagining Equality: A New Deal for Children of Color takes on the task of confronting and addressing these hierarchies, as well as articulating a comprehensive strategy for change to achieve equality, equity, and dignity for all children. In this Essay, I outline the core components of the book as a backdrop and focal point for dialogue and discussion on children and poverty in this Issue of the Fordham Urban Law Journal. I also present questions that remain in order to achieve children’s equality. Part I of the book synthesizes the interdisciplinary research on the life course of African American boys from birth to adulthood as a means to concretely examine the creation of hierarchies among children. Black boys are presented as exemplars, not as a prioritized group. Their life patterns have been extensively examined, often to reinforce a stereotype of deviance, but this research nevertheless clearly exposes the making of hierarchy based on race, gender, and class. Part II of the book uses the pattern of Black boys to explore the impact of subordination on development, and the making of inequality. Developmental analysis in law and other disciplines commonly centers around a neutral child, ignoring the impact and pattern of hierarchies among children. This Part argues developmental analysis — the use of development in law — must instead consciously focus on the actual developmental path of children of color in order to be a vehicle for equality. Introducing the theoretical contributions of Margaret Beale Spencer and Cynthia Garcia Coll, this part constructs a model of developmental equality. Developmental equality centers the goal of equality on the lived experiences of children of color upon whom heavy additional burdens as children developing into adulthood have been imposed. Burdens and barriers to maximizing the development of all children must be removed to achieve children’s equality. With this reimagined definition of equality in mind, Part III of the book explores strategic alternatives. These include potential statutory and constitutional litigation strategies, but most expansively, a legislative strategy — A New Deal for Children. Borrowing from the tradition of prior expansive legislative programs enacted in response to the need for dramatic change and problem solving, such as the 1930s New Deal, the post-World War II GI Bill, and the Great Society programs of the 1960s, a New Deal for Children argues for a comprehensive approach of intersecting programs to create the necessary supports for children. At its core, the New Deal would ensure equality, equity, and dignity, and change children’s hierarchies to children’s opportunities. Both visionary and pragmatic, the New Deal for Children is grounded in systems and policies in place elsewhere in the world, as well as localized models of comprehensive, intersecting programs in place in the U.S. Finally, the essay concludes with a series of questions that remain to be explored, discussed, and debated to achieve the goal of equality among children. Equality has eluded America’s children for generations because their ability to develop has been stymied, blocked, and undermined. The process to challenge that reality and implement real change raises complex, but not insurmountable, issues.

Contesting Constitutional Multi-Culturalism in Tanzania: The Trials of Christopher Mtikila

Conflicts over the permissible limits on speech that weaponizes racial, religious, and ethnic identities are a global phenomenon. Tanzania’s constitutional and legal debates over this matter are a microcosm of a global dialogue. Since the early years of independence, Tanzania has imposed constitutional and legal restrictions on speech that speech that espouses ethnic, religious, or racial divisions. These restrictions are the surviving portion of founder-President Julius Nyerere’s multi-faceted effort to construct a multi-cultural political environment. Tanzania’s early leaders were deeply aware that ethnic rivalries had come to cominate the political life of other countries in their region. They were determined that Tanzania should become and remain the non-Sudan, non-Rwanda, and non-Kenya of Eastern Arica. They did so by introducing constitutional and restrictions on ethnic political appears into the country’s constitution and electoral laws. Since independence, each iteration of the Tanzanian Constitution has forbidden the registration of political parties that base their electoral appeal on these forms of speech. Tanzania has also embedded these limitations in its electoral laws, which limit candidacy for electoral office, at both national and local levels, to candidates nominated by registered parties. These limitations have given rise to more than twenty years of constitutional litigation. This article presents a study of the key constitutional cases. The methodology of this article is a close examination of a series of trials in which Tanzania’s constitution and electoral laws have been subjected to litigation. Four trials are of utmost significance: two, before the Tanzanian High Court; one, before the Tanzania Court of Appeal, and one before the African Court of Human and People’s Rights. Despite adverse court rulings, Tanzania’s political leaders appear determined to retain the restrictive portions of their constitution and electoral system; these remain in place to the present time.

Children's Equality: The Centrality of Race, Gender, and Class

Hierarchies among children dramatically impact their development. Beginning before birth, and continuing during their progression to adulthood from birth to age 18, structural and cultural barriers separate and subordinate some children, while they privilege others. The hierarchies replicate patterns of inequality along familiar lines, particularly those of race, gender, and class, and the intersections of those identities. These barriers, and co-occurring support of privilege for other children, emanate from policies, practices, and structures of the state, including education, health, policing and juvenile justice, and limited social welfare. Reimagining Equality: A New Deal for Children of Color takes on the task of confronting and addressing these hierarchies, as well as articulating a comprehensive strategy for change to achieve equality, equity, and dignity for all children. In this Essay, I outline the core components of the book as a backdrop and focal point for dialogue and discussion on children and poverty in this Issue of the Fordham Urban Law Journal. I also present questions that remain in order to achieve children’s equality. Part I of the book synthesizes the interdisciplinary research on the life course of African American boys from birth to adulthood as a means to concretely examine the creation of hierarchies among children. Black boys are presented as exemplars, not as a prioritized group. Their life patterns have been extensively examined, often to reinforce a stereotype of deviance, but this research nevertheless clearly exposes the making of hierarchy based on race, gender, and class. Part II of the book uses the pattern of Black boys to explore the impact of subordination on development, and the making of inequality. Developmental analysis in law and other disciplines commonly centers around a neutral child, ignoring the impact and pattern of hierarchies among children. This Part argues developmental analysis — the use of development in law — must instead consciously focus on the actual developmental path of children of color in order to be a vehicle for equality. Introducing the theoretical contributions of Margaret Beale Spencer and Cynthia Garcia Coll, this part constructs a model of developmental equality. Developmental equality centers the goal of equality on the lived experiences of children of color upon whom heavy additional burdens as children developing into adulthood have been imposed. Burdens and barriers to maximizing the development of all children must be removed to achieve children’s equality. With this reimagined definition of equality in mind, Part III of the book explores strategic alternatives. These include potential statutory and constitutional litigation strategies, but most expansively, a legislative strategy — A New Deal for Children. Borrowing from the tradition of prior expansive legislative programs enacted in response to the need for dramatic change and problem solving, such as the 1930s New Deal, the post-World War II GI Bill, and the Great Society programs of the 1960s, a New Deal for Children argues for a comprehensive approach of intersecting programs to create the necessary supports for children. At its core, the New Deal would ensure equality, equity, and dignity, and change children’s hierarchies to children’s opportunities. Both visionary and pragmatic, the New Deal for Children is grounded in systems and policies in place elsewhere in the world, as well as localized models of comprehensive, intersecting programs in place in the U.S. Finally, the essay concludes with a series of questions that remain to be explored, discussed, and debated to achieve the goal of equality among children. Equality has eluded America’s children for generations because their ability to develop has been stymied, blocked, and undermined. The process to challenge that reality and implement real change raises complex, but not insurmountable, issues.

지적재산권과 관련한 헌법소송의 쟁점과 처방

이 글은 제22조 제2항의 이해를 바탕으로 지적재산권과 관련하여 헌법실무적으로 제기하는 쟁점을 도출한 후 이 쟁점에 대하여 이론적 처방을 제시하는 것을 목적으로 하였다. 이러한 목적을 달성하기 위하여 우선 헌법 제22조 제2항을 제23조, 제10조와 관련하여 어떻게 이해하여야 하는지 제시하였다(Ⅱ). 그리고 헌법실무적으로 제기되는 쟁점인 지적재산권을 침해받은 자가 당해 지적재산권 규정의 위헌성을 주장하는 헌법소송을 제기할 때 어떤 심사기준으로 위헌 여부를 판단할 것인지, 지적재산권을 침해한 자가 당해 지적재산권 규정의 위헌성을 주장하는 헌법소송을 제기할 때 어떤 심사기준으로 위헌 여부를 판단할 것인지, 지적재산의 창작에 기여하였으나 지적재산권을 부여받지 못한 사람의 기본권 침해 심사 방법에 대하여 살펴보고 처방을 제시하였다(Ⅲ). 마지막으로 이상의 논의를 정리하며 글을 맺었다(Ⅳ).<BR> 이 글의 논의의 핵심을 정리하면 다음과 같다. 첫째, 헌법 제22조 제2항은 국가목표규정이 아니라 기본권규정으로 이해하는 것이 타당하다. 둘째, 제22조 제2항은 지적재산권과 인격권 모두의 헌법적 근거로 이해하는 것이 타당하다. 셋째, 저작권, 특허권, 실용신안권 등 창작성을 요하는 지적재산권은 헌법 제22조 제2항이 헌법적 근거이며, 상표권, 영업비밀에 관한 권리, 퍼블리시티권 등 창작성을 요하지 않는 지적재산권은 제23조가 헌법적 근거이다. 헌법 제22조 제2항의 요건 중 하나가 창작자이고 이러한 창작자의 핵심요소가 창작성에 있기 때문이다. 넷째, 헌법 제22조 제2항은 헌법 제23조 재산권 조항과 구별되는 독자적인 의미가 있는 조항이다. 다섯째, 이상의 논의를 바탕으로 지적재산권자가 현행 지적재산권법 규정에 대하여 헌법소송을 제기하면 다음과 같이 처리할 것을 제안하였다. 우선 지적재산권자가 현행 지적재산권법 규정으로 인하여 자신의 지적재산권이 침해당했다고 헌법소원을 제기하는 경우 헌법재판소는 헌법 제23조 재산권이 아닌 제22조 제2항을 관련 기본권으로 확정하여야 한다. 그리고 그 제한이 정당한 것인지 심사하는 기준은 원칙적으로 제37조 제2항의 요건과 한계이다. 물론 이 때 가장 핵심적인 심사기준은 일반적인 헌법소원과 마찬가지로 과잉금지의 원칙이다. 한편, 당해 사건에서 문제된 쟁점에 따라 명확성의 원칙, 신뢰보호의 원칙, 포괄위임 금지의 원칙등 다른 헌법소원에서 사용하는 심사기준도 동원될 수 있다. 위헌법률심판이나 헌법재판소법 제68조 제2항의 헌법소원을 제기한 경우에도 그 구조와 심사기준은 원칙적으로 동일하다. 이러한 의미에서 헌법재판소가 실용신안권 사건에서 실용신안제도의 헌법적 근거를 우선 제22조 제2항에서 찾았음에도, 실용신안권이 재산적 가치가 있는 권리이므로 헌법 제23조 재산권에 의하여 보장되는 재산적 가치가 있는 권리라고 하면서 과잉금지의 원칙을 심사기준으로 적용한 것은 개선이 필요하다. 여섯째, 지적재산권을 침해한 자가 당해 지적재산권법에 대하여 헌법소원을 제기하는 경우에는 관련 기본권 확정 단계에서 이용자의 이익이 독자적 기본권으로 인정될 수 있을 것인지 쟁점이 된다. 이용자의 이익은 독자적인 기본권이 아니라 국가의 적극적 행위의무를 통해 보장되는 헌법상 이익으로 이해하는 것이 타당하다. 따라서 이용자는 표현의 자유, 종교의 자유 등 그와 별도로 침해된 기본권을 주장하여야 한다. 일곱째, 지적재산권을 부여받지 못한 창작자가 지적재산권을 부여하지 않은 현행 지적재산권법이 자신의 권리를 침해한다고 헌법소원을 제기한 경우 헌법소원의 적법성을 판단하는 단계에서 헌법소원을 제기자가 제22조 제2항의 보호범위에 있는 자인지 판단하고 이 보호범위 안에 있으면 제22조 제2항의 지적재산권을 관련 기본권으로 확정하여 제시하여야 한다. 이 과정에서 핵심은 헌법소송을 제기하는 자가 제22조 제2항의 요건 중 창작자 요건을 갖추고 있는지 여부를 판단하는 것이다. 그리고 문제된 공권력의 행사가 당해 지적재산권을 제한한 것인지, 제한하였다면 그 제한은 정당한지를 심사하여야 하며, 이 때 가장 중요한 심사기준은 과잉금지의 원칙이다. 따라서 헌법재판소가 저작권법 제9조 사건에서 입법형성권 한계를 일탈하였는지 여부를 판단한 것은 적절치 않다고 평가했다.

The Common Law Origins of Ex parte Young

Few doubt the significance of Ex parte Young as a cornerstone of modern constitutional litigation. But important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, the primary mode by which individuals test the constitutionality of government action. Deploying a historically-inflected methodology that we call equitable originalism, scholars and jurists have sought to define federal equity power by reference to the forms of equitable intervention that were common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such investigations have led scholars and jurists to question the power of federal courts to grant affirmative Ex parte Young relief and to issue what have come to be known as national or universal injunctions. This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters was driven by the primacy and perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for the judicial oversight of the eighteenth century administrative state. Over time, however, courts in the United States came to view the common law writs as imperfect modes of oversight. Displaying its customary flexibility, equity adapted. Ex parte Young confirms a nineteenth century transition away from the common law writs and toward the equitable injunction as the primary mode of judicial control of administrative action. Equitable originalism could rule out such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

Expansion of Corporative Free Speech and the Ongoing Constitutional Crisis in the United States

This paper focuses on the constitutional-political turbulence that Donald J. Trump has been creating since he was elected president of the United States. On the one hand, we point out the mainstream of litigious and political issues as signals of an on-going constitutional crisis in the United States and its consequences, both in the national and international scenarios. On the other, we explain the indicators of the constitutional crisis within two levels of analysis. The first one considers Trump’s multiple attacks against American constitutional liberties, while the second one studies the cases of Trump’s policies against customary international law. The paper unveils empirical evidence of all the above-mentioned issues in order to explain the increasing constitutional litigation in District Courts and the Supreme Court of the United States. Therefore, the article puts the finger on the role of the judiciary as a key factor in blocking Trump’s policies and his pervasive attacks on the American rule of law.

A “Safe Outlet” for Prisoner Discontent: How Prison Grievance Procedures Helped Stymie Prison Organizing During the 1970s

This article demonstrates how civil liberties lawyers’ efforts to address the complaints of imprisoned people in the 1970s inadvertently helped provide state attorneys with tools they used to stymie prisoners’ organizing efforts. Using North Carolina as a case study, I explain why a diverse range of legal actors—including civil liberties lawyers, federal judges, and state attorneys—supported the creation of prison grievance procedures. I then reveal how state attorneys successfully used them, once implemented, to argue that because the procedures offered a seemingly fair, institutional avenue for imprisoned people to express their grievances, prison administrators could ban prison organizing without violating prisoners’ First Amendment rights to free speech and assembly. The history of prison grievance procedures, I suggest, highlights the limits of constitutional rights litigation for achieving social change, offers a new approach to the study of legal endogeneity, and helps explain the demise of the prisoners’ rights movement.

Precedent, Particularized Injunctions, and Judicial Departmentalism: A Model of Constitutional Adjudication

This article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles: 1) An actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself; 2) the remedy when a law is constitutionally invalid is for the court to halt enforcement; 3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions; 4) a judgment controls the parties to the case, while the opinion of a court creates precedent to resolve future cases; and 5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding. The synthesis of these five principles produces a constitutional system defined by the following features: 1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case; 2) the challenged law remains on the books; 3) the challenged law may be enforced as to non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

Qualified Immunity Selection Effects

The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1183 Section 1983 cases filed in five federal districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo. This Article tests this alternative justification for qualified immunity. It reports the results of the largest and most comprehensive study to date of the role qualified immunity doctrine plays in attorneys’ decisions to file civil rights suits, combining my prior study of 1183 cases with surveys of ninety-four attorneys who entered appearances in these cases, and in-depth interviews of thirty-five of these attorneys. I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align doctrine with the realities of constitutional litigation.

The New General Common Law of Severability

The doctrine of 'severability' permits a court to excise the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder. Severability figures centrally in a broad array of constitutional litigation, including the litigation over the 'individual mandate' provision of the Patient Protection and Affordable Care Act. Nevertheless, the doctrine remains underexplored. In particular, no commentator has thoroughly examined choice-of-law rules pertaining to its application. This Article aims to fill that void. The Article contends that in recent decisions the Supreme Court has quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or a supporting federal interest. The new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. The Article closes by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.

Wealth, Equal Protection, and Due Process

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the equal protection and due process clauses. That intersection — between equality and due process — deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia explained that “[d]ue process and equal protection principles converge in the Court’s analysis” of cases in which criminal defendants are treated differently by wealth. That equal process connection is at the forefront of a wave of national litigation concerning some of the most pressing civil rights issues of our time, including: the constitutionality of fines, fees, and costs; detention of immigrants and criminal defendants for inability to pay cash bail; loss of voting rights; and a host of other ways in which the indigent face both unfair process and disparate burdens. I argue that an intersectional “equal process” approach to these cases better reflects both longstanding constitutional doctrine and the practical stakes in such litigation. If courts properly understand this connection between inequality and unfair process, they will design more suitable and effective remedies. More broadly, scholars have bemoaned how the Court turned away from class-based heightened scrutiny in Equal Protection doctrine. Equal process theory has the potential to reinvigorate the Fourteenth Amendment as a guardian against unfair process and discrimination that increases inequality in society.

Конституційний судовий процес: методологія та філософсько-правові засади

The purpose of the scientific article is to summarize and develop theoretical and methodological knowledge about the nature, nature and features of the constitutional judicial process, as well as to invent a system of measures to: defining the philosophical and legal content of constitutional judicial control as a multifaceted philosophical and legal category; understanding of methodological and procedural principles of its application; identification of the relationship between the structural and functional specifics of the judicial control institute and the characteristic features of social relations in the main spheres of life of the society. The methodological basis of scientific search is a set of philosophical and philosophical principles of scientific cognition, methodological approaches, general methods of thinking, philosophical, general scientific and specifically scientific methods, the use of which has provided the validity and reliability of the results of the study of the laws of constitutional judicial process formation. The scientific novelty of the publication is that for the first time it was proposed to use special methodological tools in the course of developing the theory of constitutional litigation; have further developed scientific ideas about the genesis of the theory of proof and its prospects in domestic law. The conclusions of the scientific article are as follows: The philosophical and legal nature of the judicial constitutional process as a socio-political category and legal phenomenon is based on the achievements of the centuries-old history of the national state-making in ensuring human rights and freedoms, decent living conditions and the desire to develop and strengthen a democratic, social, and legal state. In this context, the powers of the Constitutional Court of Ukraine are not only an important function from the point of view of compliance with constitutional law, but also have special significance as an activity aimed at determining the essential principles of the constitutional process and reflecting the socio-cultural status of society and indicators of the real level of relations between society and the individual. , the government and the citizen, the mechanism of state power and the institutions of civil society in their unity and contradiction (opposites). Thus, «unity of opposites» means their interdependence, that is, the existence of one opposition implies the necessary existence of another opposite, in our case it concerns the categories of «letter» (positivist component) and «spirit» (axiological and ontological components) of law. Keywords: evidence base; constitutional litigation; methodological tools; theory of proof.

지방자치단체의 헌법소원 도입방안

The current `1987 Constitution` introduced the Constitutional Complaint system for the first time in the constitutional history. The Constitutional Complaint, which is a subjective right remedy to apply to a special court, could be the core of the Constitutional Court if the public power violates the Constitutional rights of the subject of the Fundamental Right. However, such the Constitutional Complaint system also does not play a significant role in the area of Local Government system revitalized as the current Constitution implemented. In the case of the violation of Fundamental Right or Autonomy of Local Government, it is necessary to examine whether it can be relieved through the Constitutional litigation means of the Constitutional Complaint, whether there is a contact between the Constitutional Complaint in the Constitutional court system and the Constitutional Local Government system. BR The purpose of this study is to propose juridically reasonable ways in relation to the introduction of the Constitutional Complaint system of Local Government. In addition to presenting the interpretation theory of whether or not the Constitutional Complaint for Fundamental Right Remedy of Local Government is possible, this study would suggest a detailed legislative solution for the Constitutional Complaint of Autonomy Remedy of Local Government.BR First, this study would examine whether the Local Government incorporated in the public law is the subject of the Fundamental Right. As the German pluralism and the case of the Federal Constitutional Court in principle deny and exceptionally recognize the subjectivity of Fundamental Right of the public corporation, based on this perception, domestic theories and precedents on the subjectivity of Fundamental Right of Local Government would be analyzed. This study would criticize the case of Constitutional Court in Korea, which has a passive attitude to the recognition of Fundamental Right of Local Government, and would emphasize the resonable conclusion according to individual cases through interpretation.BR Next, this study would propose a concrete legislative plan for the Constitutional Complaint of Autonomy Remedy of Local Government. This study would evaluate the Constitutional Complaint of Local Government in German, which has its positive legal basis in the basic law and the federal law, and would propose the legislative introduction of this system through the amendment of the current Constitution and Constitutional Court Act in Korea. Through the review of the precedent study which would assert the introduction BRand would propose the legislative plan of the Constitutional Complaint of Local Government in German, in the end, this study would assert to require the amendment of Article 111 (1)(the establishment of No. 6) of the Constitution, the amendment of Article 2(the establishment of No. 6) and the establishment of Article 68-2 of the Constitutional Court Act in order to introduce the German Autonomous Complaint.

Is the Second Amendment a Second-Class Right?

In the decade since District of Columbia v. Heller, results for gun rights claimants have been fairly unimpressive. The situation leaves some people concerned that judicial opposition is turning the Second Amendment into a second-class right. This paper takes up empirical elements of the concern. We compare five fields of constitutional litigation in the U.S. Courts of Appeals from 2008 through 2016: gun rights, abortion rights, affirmative action, establishment of religion, and commercial speech. In terms of success rates, we do find significant differences in attracting judge votes across some of these case sets, with gun rights claims at the low end. We are unable to erase or fully explain the relatively poor performance of gun rights claims by introducing several independent variables. Furthermore, judges appointed by Democrats might contribute more to the disparities than judges appointed by Republicans, although neither set of judges seems to support all claims at equal rates. In terms of causes, the situation is far less clear. Plausible explanations are available that do not involve judges disfavoring gun rights, such as relatively assertive claimants and relatively cautious regulators. Existing data cannot rule out those explanations. Nor is it clear that more data will solve the problem of isolating the contribution of judicial preferences to case results across fields of litigation. More fully detailing and explaining the forces at play in all of these fields is a task for future work, a significant part of which will have to be theoretical, historical, and ethnographic.

Social science and humanities evidence in Charter litigation

Carter v Canada (Attorney General) is a Canadian case that famously struck down the Canadian Criminal Code prohibitions on euthanasia and assisted suicide (now known collectively as medical assistance in dying or MAiD). The most significant issue in the Carter case was that of the status of MAiD. However, this case is also interesting to explore in relation to the issue of the use of expert evidence from social science and humanities researchers. In this paper, I offer reflections as an academic trained in philosophy and law but not expert in the use of social science and humanities evidence in litigation. As someone who was inside the litigation but outside the generation of the evidence, I seek to bring a perspective that may be useful to practitioners who might be thinking about working with academics and academics who might be thinking about getting involved in constitutional litigation that relates to their field of study.

Control de constitucionalidad y legitimidad política

Este artículo analiza la relación entre el control judicial de constitucionalidad y la legitimidad política entendida como la capacidad de un sistema político y jurídico de generar respaldo para la implementación de las leyes y políticas, incluso por parte de aquellos que se opusieron a estas por razones sustanciales. El artículo señala que a pesar de que existen diferentes modalidades de control judicial, así como diversas y respetables clases de legitimidad que se derivan de la función judicial, el control de constitucionalidad no está diseñado para producir legitimidad política. En tal sentido, y ante la imposibilidad de solventar esta dificultad democrática, se propone una serie de mecanismos para mitigarla como es el caso de la exigencia de supermayorías para decidir, la necesidad de contar con una presunción fuerte de constitucionalidad y la obligación de ofrecer razones que aborden explícitamente las preocupaciones democráticas. Finalmente, el artículo hace un llamado a la civilidad en el litigio constitucional, con el fin de evitar la demonización del oponente y abrir espacios de legitimidad política en el control de constitucionalidad.

Partisan Constitutionalism: Reconsidering the Role of Political Parties in Popular Constitutional Change

Scholars have long understood that political parties play an important role in shaping constitutional culture over time. This occurs most obviously through judicial appointments but also by participating in the shaping of public opinion and passing legislation affecting the scope of our fundamental commitments. But recent legal challenges to the healthcare law highlight the ability of political parties to use courts to shift the scope and meaning of our policy and constitutional commitments also in the very short run, through their strategic support for high-stakes public litigation. In both the NFIB and King challenges, some number of political opponents of the healthcare law recognized in the developing legal case an opportunity to extend a fight that had been waged in the political branches (at both the state and federal level), to a new and potentially more favorable battleground. This paper seeks to identify, for the first time, the mechanisms that allow political parties to play this role. I use the healthcare challenges to show that parties, acting under certain conditions, can increase both the success and also speed at which politically-charged legal claims are dislodged from off-the-wall to being fair game for courts. In particular, I argue that this happens through four main mechanisms, each of which can be observed in two healthcare cases. Political parties have a unique ability, beyond what is available to private litigants or social movements, to initiate and support legal challenges by 1) providing the direct infrastructure for public litigation, 2) communicating salience of the challenge to courts, including by signaling the case’s importance, 3) provide a common vocabulary of constitutional meaning that mediate between the litigants, the courts, and the public, and 4) framing relevant prudential considerations that might influence judicial decisionmaking. I describe how these four connected mechanisms were used by the party apparatus — through a process I term “partisan constitutionalism” — to advance the ACA challengers’ legal claims. I show that these dynamics helped move the challengers’ arguments from being widely considered unthinkable to being open and contested questions — thus providing cover for courts to depart from settled precedent to rule in favor of the challengers. This paper seeks to show the different ways that parties can support strategic constitutional litigation — while also acknowledging that various political and institutional considerations will often prevent them from playing this role. I conclude that partisan constitutionalism has been made both more attractive and feasible by the background conditions of hyperpolarization and divided government. Rising polarization increases the incentives for political actors to “constitutionalize” political arguments and then for judicial actors to accommodate these attempts, while divided government increases the frequency of situations in which a party finds it advantageous to pursue its policy objectives through strategic litigation rather than orthodox lawmaking. These two features of our modern politics reinforce each other, helping to explain why the party-driven constitutional litigation observed in the healthcare cases is a relatively recent phenomenon — even as many of the mechanisms identified here have long been available to political parties. This dynamic threatens to fundamentally change the role of the judiciary, which increasingly will tend to function — and thus be treated by political actors — as a new institutional veto point for the political process.