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When a federal statute faces constitutional challenges, the Department of Justice traditionally almost always has defended the constitutionality of that statute. Even if attorneys in the Department think the statute [...]

According to the Supreme Court, the "irreducible constitutional minimum of Article III standing" is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense. This Article argues that the difference in standing requirements between civil and criminal cases is unwarranted. The various justifications provided for standing--the text of Article III, historical practice, principles of separation of powers, and a host of practical considerations--all support imposing the same standing requirements in civil and criminal cases. Moreover, maintaining the different standing requirements has various undesirable consequences. It results in the government having broader access to the courts to enforce its interests than individuals to enforce their rights, and it tends to devalue civil rights relative to government interests. It also encourages the proliferation of criminal laws. Because a lower standing threshold applies to criminal cases, criminal law is a more robust and flexible tool for regulation than civil laws conferring individual rights. This advantage incentivizes Congress to regulate through criminal law--thus contributing to the problems of overcriminalization and mass incarceration. [ABSTRACT FROM AUTHOR]

INTRODUCTION Government power is divided between the states and federal government. States have general government authority within their borders, while the federal government has only limited powers but jurisdiction over [...]

Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., courts must defer to reasonable agency interpretations of statutes they are charged with administering. Although this deference captures the institutional advantages of agencies in interpreting statutes, critics--most notably Justices Thomas and Gorsuch--have raised serious challenges to its legality. They have argued that Chevron violates Article III by constraining the interpretive power of the federal courts; rests on the unjustifiable assumption that Congress has delegated primary interpretive authority to agencies; and is inconsistent with the Administrative Procedure Act, which directs federal courts to review statutes de novo. These challenges threaten to unravel Chevron deference, thereby losing the functional, institutional benefits of that deference and casting doubt on countless agency regulations and adjudications.To meet these concerns, this Article proposes restructuring Chevron as a limitation on the remedial power of the courts instead of a doctrine of interpretation. Under this approach, courts would not defer to agency interpretations. Instead, Remedial Chevron would limit the circumstances under which courts could vacate agency actions as inconsistent with statutes. Courts could vacate agency actions on that ground only if the agency's interpretation was unreasonable. This approach would avoid the legal objections to Chevron while largely preserving the functional benefits of judicial deference to agency interpretations., INTRODUCTIONJudicial deference to agency interpretations is a central feature of administrative law. The chief form of deference derives from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1) in [...]

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals--whose judges do not enjoy the salary and tenure guarantees provided by Article III--may adjudicate disputes if the parties consent to the tribunals' jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties' consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism., INTRODUCTION 716 I. THE ARTICLE III JUDICIAL POWER 719 A. Defining the Article III Judicial Power 719 B. The Article III Courts 722 II. THE CONSENT EXCEPTION 725 A. The [...]

Under current law, a party must establish Article III standing to bring suit in federal court. According to the Supreme Court, this standing requirement is necessary to protect the separation [...]

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have independent legal authority. Moreover, various legal doctrines—such as Chevron deference and rational basis review—operate on the assumption that the law is not fixed but can be changed by courts and others. The saying is also normatively inaccurate. Federal courts often should make law. For example, the primary role assigned to the Supreme Court is to settle the meaning of unclear law, and often that settlement depends on evaluations of what the law should be rather than merely what it “is.” Persisting with the fiction that the role of the courts is “to say what the law is”—instead of actually acknowledging the lawmaking role of the judiciary— undermines judiciary legitimacy, encumbers the judicial lawmaking process, and unduly shifts accountability to others for judicial decisions. [ABSTRACT FROM AUTHOR]

ABSTRACT In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems--systems that limit sentencing factors and specify particular punishments [...]

ABSTRACT In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. [...]

One of the judiciary 's self-imposed limits on the power o f judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy [...]

The article focuses on challenges the modern statutory interpretation of criminal laws. It mentions courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law and active judiciary would combat some of the pathologies of the modern criminal justice system and protect important constitutional principles. It also mentions historical practice in failing to distinguish between criminal and other statutes and by assuming that judges.

Qualified immunity is a powerful defense that precludes actions for damages against officials for even egregious constitutional violations. But qualified immunity has not always been so strong. It has evolved over time from a modest extension of the common law defense for officials conducting arrests with probable cause to today's expansive doctrine that shields an official from liability for any constitutional violation unless the official's particular conduct was clearly unconstitutional. This Article critiques that evolution. Although doctrinal changes typically embody an effort to balance competing interests, that has not been the case with qualified immunity. Two basic policies compete for recognition in the qualified immunity doctrine: one is to vindicate constitutional rights as embodied in 42 U.S.C. § 1983 and other civil rights statutes; the other is to protect officials from oppressive suits. Qualified immunity's development has been the product of an ever-increasing drive to protect officials at the expense of the statutorily-enshrined interest in vindicating constitutional rights--to the extent that the Supreme Court no longer mentions the latter in its opinions. The Article highlights several particular shortcomings resulting from this laser focus on protecting officials. It argues that, although not all cases equally implicate the policies at stake with qualified immunity, the emphasis on protecting officials has led the Court to reject introducing any nuance into the doctrine. Thus, qualified immunity does not vary according to the importance of the right violated, nor does it consider the official's risk of making a legal error. Further, the Article argues, today's highly protective qualified immunity doctrine distorts the effects of the doctrines used to implement rights. Because qualified immunity depends on the clarity of the doctrine implementing a right, it devalues indeterminate rights--such as the Fourth Amendment prohibition on "unreasonable" searches--by limiting their enforceability. The Article contends that refining qualified immunity to account for these considerations would result in a superior doctrine. [ABSTRACT FROM AUTHOR]

In Spokeo v. Robbins, the Supreme Court held that, to establish Article III standing to bring suit in federal court, a plaintiff cannot simply allege the violation of a legal right. Instead, the plaintiff must allege an injury in fact. Although it addressed standing to bring suit for statutory violations, Spokeo raises serious questions about limits on the ability to bring breach of contract actions in federal court. After all, contracts simply create legal rights. Under Spokeo's logic, the breach of contractual rights should not support standing; instead, standing exists only if the breach results in factual harm. But restricting standing in this way would significantly curtail freedom of contract and would render many traditionally enforceable contracts unenforceable in federal court. At the same time, creating an exception to the injury in fact rule for contract law would create anomalies that would threaten to destabilize standing law. The difficulties with each of those approaches casts serious doubt on Spokeo's holding that the violation of a legal right does not support standing. [ABSTRACT FROM AUTHOR]

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal judicial power without the constraints of Article III, and Article I tribunals are more likely than state or Article III courts to adjudicate disputes in ways that undermine state interests. This Essay argues that these federalism considerations provide a sounder basis than current doctrine for some of the exceptions to Article III and they suggest ways that the exceptions to Article III should be modified. [ABSTRACT FROM AUTHOR]

Under the selective incorporation doctrine, provisions in the Bill of Rights are applied against the states if they are fundamental to the American scheme of ordered liberty or deeply rooted in this nation's history. By focusing solely on the importance of rights, this doctrine fails to account for the effect of incorporating a right on the states. This Article challenges this approach. It identifies a category of rights whose incorporation most deeply intrudes on state sovereignty. These rights do not simply create individual entitlements; they also have structural features by dictating which government institutions may exercise which government powers. These "structural rights" comprise the Fifth Amendment right to a grand jury, the Sixth Amendment right to a criminal jury, and the Seventh Amendment right to a civil jury. The Article argues that these rights should not be incorporated because the prerogative to allocate government powers is one of the core powers of state sovereignty, and the Fourteenth Amendment does not purport to strip the states of that power. In addition to protecting the state power to arrange government, adopting a theory against incorporating structural rights would explain the Court's refusal to incorporate the grand jury and civil jury rights, as well as doctrinal anomalies surrounding incorporation of the criminal jury right. Adopting the theory against incorporating structural rights would have several implications. The most significant is that it would result in the deincorporation of the Sixth Amendment right to a criminal jury. The consequence of this deincorporation is not only that the U.S. Constitution would not oblige states to provide juries in criminal cases but also that the doctrine announced in Apprendi v. New Jersey, which prohibits sentencing schemes that allowed judges to make factual findings altering the range of punishment, would no longer apply against the states. [ABSTRACT FROM AUTHOR]

The article focuses on the issue of state standing to constrain presidential power in the U.S. Topics discussed include role of the Congress in checking the president and constrain executive power; recent cases brought against the U.S. Presidents Obama and Trump Administrations; and challenges surrounding bringing action against federal executive power.

Most cases in the American legal system--civil and criminal--are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutors. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the cases, and simultaneously focusing the parties' attention on the material issues. Consequently, the civil system seeks to push only the "right" cases to settle and produces more informed and more fair settlements. This Article argues that the criminal system should more closely resemble the civil system in the way that it encourages settlements. It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties. In particular, it contends that the criminal system should heighten pleading standards and take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation. One or more states have adopted several of these reforms to at least some degree. Adopting civil-like settlement procedures in the criminal system would tend not only to produce more informed and more fair plea bargains, but would also reduce prosecutors' leverage in plea negotiations. This Article also suggests discouraging prosecutors from demanding that defendants waive these procedures by adopting some form of fee shifting, which is also borrowed from civil practice. [ABSTRACT FROM AUTHOR]

Courts often create redundant doctrines. Yet doctrinal redundancies have received little attention. Although courts and scholars have written extensively about other types of redundancy, they have hardly discussed doctrinal redundancies. This Article remedies that oversight. It begins by defining when doctrines are redundant, providing a number of examples of doctrinal redundancy, and presenting a typology of doctrinal redundancy. It then identifies various benefits and costs of doctrinal redundancy. Drawing on psychology, behavioral economics, and social choice theory, it shows that doctrinal redundancy may serve important roles in strengthening and developing the law, but that it also risks distorting the law, leading to inconsistent outcomes, and providing a basis for judicial manipulation. The Article argues that, despite the benefits, the costs of doctrinal redundancies are significant enough that courts should avoid creating doctrinal redundancies except in limited circumstances. [ABSTRACT FROM AUTHOR]

Article Ill's diversity jurisdiction provisions extend the federal judicial power to state law controversies between different states or nations and their respective citizens. When exercising diversity jurisdiction, the federal judiciary does not function in its usual role of protecting federal interests or ensuring the uniformity of federal law. Instead, federal courts operate as alternative state courts for resolving disputes between diverse parties. But federal courts often cannot act as alternative state courts because of Article III justiciability doctrines such as standing, ripeness, and mootness. These doctrines define when a federal court may act. But they do not apply to state courts. Rather, states have developed their own justiciability doctrines that substantially diverge from the federal ones. The consequence is that federal courts sitting in diversity cannot hear many claims that can be brought in state court and can hear other claims that state courts lack the power to decide. This Article argues that, instead of applying federal justiciability doctrines, federal courts should apply state justiciability doctrines to state law cases brought under diversity jurisdiction. Following state justiciability doctrines would better achieve the goals of allowing federal courts to function as alternative state courts. Moreover, following state justiciability doctrines in state law cases would not undermine the rationales underlying federal justiciability doctrines because those doctrines were developed to limit the federal judiciary's ability to interfere with the other branches of the federal government--concerns that are inapplicable in state law disputes. [ABSTRACT FROM AUTHOR]

An essay is presented on Structure of Standing doctrine. Topics discussed include doctrine of standing as a threshold jurisdictional requirement imposed by Article III, application of state standing law giving assurance of federal courts enforcement of rights to the same degree as state courts and several objections to dispensing with the injury-in-fact test in diversity cases. It also discusses the court case Erie Railroad Co. v. Tompkins of the U.S Supreme Court.

An essay is presented on challenges of teaching remedies law at the law schools in the U.S. It discusses the principles of two separate areas of law and equity which is merged in remedies course. It mentions that the same remedies law applies to other areas of the law remedy such as breaches of contracts, commissions of torts, and violations of constitutional law.

The article discusses the objections and benefits of vote trading in the court cases and presents the U.S. Supreme Court case Arizona v. United States in which Chief Justice John Roberts voted to uphold the Affordable Care Act of the U.S. It defines the concept of logrolling and explains that vote trading related to outcome changes should be forbidden. It suggests that logrolling should be allowed in limited situations.

One of the most common reasons for a judicial remand is to allow a lower court to correct an error in its judgment. The traditional theory behind the remand is that a remand is cost effective: the lower court is better situated than the appellate court to reconsider the erroneous conclusion. But remands to correct errors are not always cost effective. Remands impose costs, and sometimes those costs exceed the benefits of the remand. Nevertheless, courts often remand in those situations. This commentary examines these costs, illustrates situations where the costs of remand for error correction exceed the benefits, and considers and discusses how one function of judicial opinions is to reduce the costs of remands. [ABSTRACT FROM AUTHOR]

Federal courts have long recognized their power under Article III to award prospective relief, such as an injunction, to prevent a threatened injury. But the Supreme Court has refused to recognize Article III standing for some claims of threatened injury. Based on the concern that extending standing so broadly would threaten separation of powers, the Court has held that a plaintiff has standing to challenge a threatened injury only if the risk of harm is real and the threatened harm is imminent. This Article challenges that doctrine. It argues that Article III does not create a threshold of risk for potential harms. Contrary to the Court's view, imposing such a threshold actually undermines the powers of both the courts and Congress. It also results in incoherent and unpredictable decisions because difficulties in applying the doctrine lead courts to base their decisions not on the actual likelihood of injury, but instead on other considerations, such as separation of powers and the fitness of the Case for review. Nevertheless, recognizing that there may be reasons not to adjudicate particular claims alleging small risks of harm, this Article recommends that courts develop a prudential doctrine under which they may abstain from hearing such claims. Replacing the blanket prohibition on all low-risk claims with this prudential approach would produce a more coherent body of law and would promote both transparency and better decision-making by requiring courts to articulate the actual reasons for their decisions. [ABSTRACT FROM AUTHOR]

One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against double jeopardy. They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing. This Article challenges these conclusions. It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition against multiple punishments and that allowing recidivism enhancements undermines this protection. The Article further explains that the reasons courts give in rejecting double jeopardy challenges to recidivism enhancements directly conflict with courts' reasons for rejecting Eighth Amendment challenges to those same enhancements. The consequence is an inconsistent body of law that maximizes the government's ability to punish at the expense of individual rights. The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements and sketches a framework under which jurisdictions may increase sentences for recidivists under some circumstances, while at the same time providing meaningful constitutional review of such sentences. [ABSTRACT FROM AUTHOR]