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Chapter 1:Judicial Review


Introduction and Overview


The Background of Marbury v. Madison


Independence and the Articles of Confederation


The First State Constitutions


The Emergence of Judicial Review


Creating a New National Government


The Federalist Era, 1789-1801


The Republican Assault on the Judiciary


Marbury v. Madison: Judicial Review of the Coordinate Branches


Judicial Review of Acts of Congress


Judicial Review of Executive Conduct


The Constitution as Paramount Law in Court


Marshall’s Textual Defense of Judicial Review


The Legitimacy of Judicial Review


Federal Judicial Review of State Conduct


Challenges Initiated in Federal Court


Supreme Court Review of State Judgments


Adequate and Independent State Grounds

What Constitutes an “Adequate” State Ground?

What Constitutes an “Independent” State Ground?

In Case of Doubt: Michigan v. Long

Cases Filed in the Federal Courts


The Role of Judicial Review in a Democratic Society


The Debate over Constitutional Interpretation


Interpretivism versus Noninterpretivism








Approaching Consensus


Sources and Levels of Generality


The Techniques of Constitutional Interpretation


Constitutional Text


Original Intent


Constitutional Structure


History and Tradition


Fairness and Justice


Political Theory


Social Policy


Foreign, International, and State Law


Supreme Court Precedent


Authoritativeness of Judicial Interpretations


The Supreme Court’s Interpretations as Law


Binding Effect on Other Courts


Binding Effect on Nonjudicial Officials

Chapter 2:Congressional Power to Limit the Jurisdiction of the Supreme Court and Inferior Federal Courts


Introduction and Overview


The Power to Make Exceptions to the Jurisdiction of the Supreme Court


Defining the Scope of the Exceptions Power

The Traditional or Plenary Power View

Mandatory Interpretations

Historical Practice



Structural Limits on Exercises of the Exceptions Power


External Limits on Exercises of the Exceptions Power


A Comment on Ambiguities in the Jurisprudence of the Exceptions Clause


The Power to Create Article III Courts Inferior to the Supreme Court


Defining the Power to Constitute Inferior Tribunals


The Implicit Authority to Regulate Jurisdiction


Structural Limits on the Power to Create Inferior Tribunals


External Limits on the Power to Create Inferior Tribunals


The Power to Create Non-Article III Courts


The Argument Against Non-Article III Courts


The Justification for Non-Article III Courts


Territorial Courts


Military Courts


Adjunct Courts


The Public Rights Exception: Original Form


The Public Rights Exception: Modern Form

Chapter 3:Justiciability


Introduction and Overview


The Elements of a Case or Controversy


Constitutional Minimum Applied: Advisory Opinions and Collusive Suits


Constitutional Minimum Applied: Declaratory Relief


Constitutional Minimum Applied: Supreme Court Review of State Decisions


Prudential Considerations: Beyond the Constitutional Minimum


The Standing Doctrine







General Federal and State Taxpayer Standing


The Prohibition Against Generalized Grievances

Taxpayer Standing and the Establishment Clause


The Rule Against Third-Party Standing


The Zone of Interests Test


Organizational Standing


Legislative Standing


The Timeline of Justiciability: The Ripeness and Mootness Doctrines


Ripeness Applied


Mootness Applied, and Variations


Collateral Consequences


Wrongs Capable of Repetition Yet Evading Review


Voluntary Cessation


Class Actions


The Political Question Doctrine

Chapter 4:Special Limitations on Judicial Review of State Laws


Introduction and Overview


The Eleventh Amendment


The Eleventh Amendment and Sovereign Immunity


Suits Filed by the United States


Suits Filed by Another State


Bankruptcy Proceedings


Supreme Court Review of State Court Decisions


The Stripping Doctrine

Ex parte Young and the Fiction of Stripping

Designating the Proper Defendant

Prospective versus Retroactive Relief

Holding Officials Personally Liable in Damages

No Stripping for State Law Claims

Congressional Restriction of the Stripping Doctrine


Suits Against Governmental Entities

Classifying a Governmental Entity

Stating a Cause of Action: §1983

Suing Federal Officials


Congressional Abrogation


State Waiver by Consent to Suit


The Eleventh Amendment Anomaly


The Siler Doctrine


The Pullman Doctrine


The Younger Doctrine


The Basic Doctrine


“Pending” State Proceedings


The Nature of the State Proceedings

Proceedings of a Judicial Nature

Implicating Important State Interests


Opportunity to Raise the Federal Claim in the State Proceeding


Exceptions to the Younger Doctrine

Bad Faith or Harassment

Patently Unconstitutional

Extraordinary Circumstances


Returning to Federal Court


Common Law Immunity

Chapter 5:The Powers of the National Government


Introduction and Overview


The Necessary and Proper Clause


The Power over Interstate Commerce


A Brief History of Commerce Clause Jurisprudence


The Modern Law of the Commerce Clause


The Commerce Clause and Civil Rights


Closer Judicial Scrutiny: Lopez and Morrison


Regulating Commercial “Inactivity”


The Power to Tax and Spend


What Constitutes a Tax for Purposes of the Taxing Power?

The “Some Revenue” Test

Is the Law Penal or Prohibitory?


Specific Limitations on the Power to Tax

The Requirement of Uniformity

Direct Taxes and Proportionality

Prohibition on Taxes or Duties Laid on Exports


What Constitutes an Expenditure for Purposes of the Spending Power?

Regulatory Spending

Unconstitutional Conditions

Spending Directed Toward the States

Regulatory Authority Over Third Parties


The Power over Foreign Affairs


The Foreign Commerce Power


The Treaty Power


Executive Agreements


The War Powers


The Constitutionally Enforceable Principle of Federalism

Chapter 6:The Supremacy Clause


Introduction and Overview


The Preemption Doctrine


Types of Preemption


Conflict Preemption


Field Preemption

Express Field Preemption

Implied Field Preemption


Federal Immunity from State Regulation


Federal Immunity from State Taxation


State-Imposed Limits on Election to Federal Office

Chapter 7:The Separation of Powers


Introduction and Overview


“Checks and Balances” and the Commingling of Powers


Textual versus Structural or Functional Arguments


Textual Separation of Powers Arguments


Structural Separation of Powers Arguments


Analyzing Separation of Powers Problems


The Domestic Arena


Presidential Exercise of Lawmaking Power

The Nondelegation Doctrine

The Item Veto


The Legislative Veto


The Administrative State


The Appointment of Federal Officers

Classifying Particular Government Positions

Interbranch Appointments

Appointments Made by Congress

Setting Qualifications for Office


The Removal of Federal Officers

Congressional Participation in the Removal Process

Other Interbranch Removals

Assigning Removal Authority to an Executive Official Other than the President

Limiting the Executive’s Grounds for Removal

Multiple Layers and Limited Grounds

Prohibiting Removal Except by Impeachment

Appointment, Removal, and the Unitary Executive


Congressional Exercise of Executive Power


Separation of Powers and the Judiciary

Assigning Nonjudicial Duties to Federal Judges

Interfering with Federal Court Judgments


War and Foreign Affairs


Declaring War and Initiating Hostilities

Theory versus Practice

The War Powers Resolution

The Situation Today


Treaties and Executive Agreements

The Permissible Subject Matter of Treaties

Abrogating Treaties

Executive Agreements as a Substitute for Treaties




The Speech or Debate Clause


Executive Immunity and Executive Privilege


Executive Immunity from Suit

No Immunity from Criminal Actions

Qualified Immunity from Civil Damages Actions

Absolute Civil Damages Immunity for the President


Executive Privilege for Presidential Communications

Chapter 8:The Dormant Commerce Clause


Introduction and Overview


Early Developments


The Modern Test: An Overview


Rational Relationship to a Legitimate State Purpose


Legitimate State Purpose


Economic Protectionism


Rational Relationship


Extraterritorial Regulatory Effects


Discrimination Against Interstate Commerce


What Constitutes Discrimination?


Less Discriminatory Alternatives


Balancing Burdens and Benefits


Burdens Must Clearly Outweigh Benefits


Relevance of Other Statutes


Cases in Which Balancing May Be Inappropriate


Using the Least Burdensome Alternative


Less Burdensome Alternatives


Less Burdensome and Less Discriminatory Alternatives


State Regulation of Alcohol


State Laws That Affect Foreign Commerce


Congressional Consent or Authorization


The Market Participant Doctrine


The State as Buyer or Seller


State Subsidies


State Tax Credits and Tax Exemptions


State Taxes and the Dormant Commerce Clause


Substantial Nexus to the Taxing State


Fairly Apportioned

The Subject of a Tax

Methods of Apportionment


Discrimination Against Interstate Commerce


Fairly Related to State Services


Taxation of Foreign Commerce

Chapter 9:The Privileges and Immunities Clause of Article IV


Introduction and Overview


Fundamental Rights


Discrimination Against Citizens of Other States


The Requirement of Discrimination

Corfield v. Coryell and Natural Law

The Rejection of Corfield

The Fourteenth Amendment Privileges or Immunities Clause


Who Qualify as “Citizens” of Other States?


Discrimination Based on Municipal Residence


The Substantial Reason Test


The General Test


State-Owned Goods or Resources


Other Means of Challenging Discrimination Against Out-of-Staters


Discrimination Against Out-of-State Corporations


Discrimination Against Citizens of Other States Where No “Fundamental” Right Is Involved


Discrimination Against Former Citizens of Other States

Table of Cases


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