Debunking Antinovelty
Leah M. Litman

This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto antinovelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: the Court described a statute as novel when distinguishing that statute from other, constitutionally permissible ones. Since then, the Court has weaponized its rhetoric about legislative novelty such that a federal statute’s novelty is now a “telling indication” that the statute is unconstitutional.

This Article urges the Court to abandon this rhetoric. The idea that legislative novelty is a sign that a statute is unconstitutional primarily rests on the mistaken Madisonian premise that Congress reliably exercises the full scope of its constitutional powers and that prior Congresses’ failure to enact a statute shows that prior Congresses assumed that the statute was unconstitutional. But there are myriad reasons why Congress does not enact statutes: enacting federal laws is difficult—in part because of constitutional requirements—and Congress legislates in response to existing conditions, which change over time. There are also many reasons why Congress may not innovate and why Congress may not have enacted every constitutionally permissible means of regulation. This Article suggests that there may be a more limited role for legislative novelty to play in areas of underenforced constitutional norms where courts have struggled to articulate workable doctrinal rules. Even then, a statute’s novelty should carry little weight in any determination about the statute’s constitutionality. Finally, this Article reflects on whether rejecting the Court’s rhetoric about legislative novelty necessarily calls into question the idea that a history of similar congressional statutes is evidence that a statute is constitutional.

Standing To Sue: Lessons from Scotland’s Actio Popularis
James E. Pfander

Much of what we think we know about the nature of judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s Commentaries on the Laws of England shaped many an antebellum lawyer’s notion of legal practice, and jurists in the twentieth century quite deliberately pointed to the courts at Westminster when discussing the origins of judicial power in America.

An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth-century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which relied on Romano-canonical alternatives to the common law writ system. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these courts registered legal claims and tested the boundaries of official authority.

This Article examines the rules of standing to sue that emerged from one important court’s reliance on civil law modes of practice. The Scottish Court of Session heard cases in both law and equity and, early on, developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While in private litigation the Scots imposed standing limits—or what the Court of Session referred to as title and interest to sue—they also permitted individuals to bring an actio popularis, or popular action, in certain circumstances. The Scottish actio popularis allowed individual suitors to press legal claims held in common with other members of the public. By offering an account of Scots practice, this Article illuminates a remarkably mature but long-ignored body of standing law. In doing so, it draws upon Scottish ideas to explore the origins of modern standing law in the United States, the viability of claims asserting generalized grievances, and the importance of representational adequacy and nonparty preclusion to a full understanding of public law litigation.


Lessons from New Orleans: A Stronger Role for Public Defenders in Spurring Indigent Defense Reform
Ace M. Factor

Excessive caseloads prevent public defenders from fulfilling their ethical obligations and curtail criminal defendants’ right to the effective assistance of counsel. Despite this ethical and constitutional dilemma, legislators have been reluctant to provide adequate funds for indigent defense. And because of the separation of powers, courts have been unable to force legislators’ hands. Against this backdrop, criminal defendants in states that choose not to adequately fund indigent defense face a serious risk of wrongful conviction.

The Orleans Public Defenders Office (OPD) provides a case study of public defenders playing a stronger role in spurring legislative reform. In response to a funding crisis in Louisiana, the OPD refused to take new cases beyond constitutionally permissible workloads. This refusal resulted in criminal defendants being put on waiting lists for representation, which garnered national attention, gave rise to class action lawsuits against the state, and created a threat to public safety. These are governance problems that legislators prioritize over funding indigent defense. The OPD’s refusal to take new cases has been somewhat successful: in response to this crisis, the state legislature has provided additional funds to public defenders’ offices in the state.

Public defenders are in a unique position to put pressure on legislators. By refusing to take new cases that would cause their workloads to be excessive, public defenders can both maintain their obligations to the profession and ensure constitutional representation for their clients.

Zivotofsky II and National Security Decisionmaking at the Lowest Ebb
Chase Harrington

This Note examines assertions of exclusive presidential power in light of the Supreme Court’s 2015 decision in Zivotofsky ex rel. Zivotofsky v. Kerry. This Note argues that, contrary to the suggestion of some commentators, the decision enhances the President’s ability to disregard legislative restrictions at flashpoints of national security decisionmaking.

As Zivotofsky II saw, the President exclusively holds the power to recognize foreign countries. More significant, however, are the analytic moves that the Court introduces when assessing a President’s defiance of an act of Congress—a setup where the President’s power reaches its “lowest ebb.”

The Zivotofsky II Court reshaped the lowest-ebb posture by relying heavily on historical practice and functionalist arguments to support its conclusion that the President enjoys exclusive authority over foreign recognition. Such arguments have never before been invoked by the Court to invalidate an act of Congress in the field of foreign affairs and systematically favor the executive in future separation-of-powers standoffs. Moreover, even if courts read Zivotofsky II narrowly, executive branch lawyers will not. And because justiciability doctrines often insulate executive action from judicial review, the primary (if not the only) legal assessment of hard national security choices will be made by lawyers in the executive branch.

To illustrate the importance of Zivotofsky II’s impact on executive power, this Note presents three case studies in areas where the political branches have ambiguous or overlapping authority and where the structural advantages of the executive branch are uniquely important—covert actions, electronic surveillance, and the disposition of captured enemy combatants.

Liquidation of Constitutional Meaning Through Use
Paul G. Ream

In recent years, constitutional scholars have engaged in dialogue over the validity of looking to historical and social practice to determine what the Constitution means. Part of this debate has focused on the idea of “liquidation,” suggested by James Madison in Federalist 37 and other writings as a means by which the text of the Constitution might take on additional meaning after the ink had dried. Constitutional decisionmakers, both on the Supreme Court and in the executive branch, have found recent occasion to consider the importance of past practice when deciding what our founding document means now.

This Note clarifies the idea of liquidation and explores what it might offer us as an interpretive tool. To do so, it sets up two lines of inquiry, one historical and the other theoretical. Ultimately, I hope to demonstrate that Madison’s idea of liquidation, revealed through historical evidence, is conceptually quite similar to the way twentieth-century linguistic philosopher Ludwig Wittgenstein suggests that language—be it constitutional text or modern speech—acquires meaning. Wittgenstein’s suggestion that meaning comes from use illuminates and fills in a theoretical structure behind what Madison meant when writing about liquidation.

By using the tools of history and philosophy, this Note combines two interpretive modalities in service of strengthening the legitimacy of scholarly and judicial recognition of the robust role that practice plays in our decisions about what the Constitution means. Examining the Madisonian concept of liquidation through Wittgenstein’s ideas about language provides useful reinforcement to the idea that what we do “can inform our determination of ‘what the law is.’”