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Volume 73, Issue 1 (October 2023)

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Fact Stripping

Joseph Blocher & Brandon L. Garrett | PDF

Appellate fact review in constitutional litigation has never been more important. Whether someone’s rights were violated often turns on what happened—matters of fact—and not solely on matters of law. That makes it all the more striking that the U.S. Supreme Court has increasingly reversed rulings of lower courts based on factual disagreement, given that such factfinding is typically entitled to significant appellate deference. Scholars and would-be reformers have noted many problems with appellate factfinding, but have tended to assume that the Court itself has final say on the applicable standard of review.

Yet as a matter of constitutional law, the Supreme Court is not the factfinder in chief. Article III gives Congress power to define the Court’s “appellate jurisdiction, both as to Law and Fact” and Article I gives Congress power to “constitute” the inferior federal courts. Congress can, by statute, require Supreme Court Justices and appellate judges to view the factual record with some level of deference. We call this approach “fact stripping.” It is different than the more familiar jurisdiction stripping—the much-discussed power of Congress to take away the federal courts’ power to hear certain kinds of cases—and raises fewer constitutional or legitimacy concerns. And if done properly, it can instead protect rights by shifting power from appellate judges to trial judges and jurors better able to find the facts.

Our focus is on use of fact stripping regarding constitutional claims in lower federal courts, but Congress has already regulated the review of constitutional facts—with the Supreme Court’s approval—in other important areas of law. For example, in federal habeas corpus, Congress has mandated more deference by restricting appellate factual review, while in some areas of administrative adjudication, such as immigration, it has required less factual deference (that is, more review) than the constitutional floor would require.

How Congress should exercise this constitutional power is primarily a question of how best to allocate power within the judiciary, and thus raises questions of institutional competence, including the role of appellate courts in law development and establishing uniformity, as well as the importance of robust factfinding in constitutional cases. Congress, however, need not agree with where the Supreme Court has drawn those lines, and might want to re-allocate factfinding power to the trial courts. Our goal here is not to prescribe a particular form of fact-stripping legislation, but to suggest that congressional regulation of appellate constitutional factfinding is one of many possible responses to a Supreme Court that has increasingly arrogated factfinding power to itself.

The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History

Jacob D. Charles | PDF

In June 2022, the Supreme Court struck down New York’s concealed carry licensing law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. By requiring historical precedent for any modern regulation, that test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically focused Supreme Court case law and a harbinger of potential doctrinal transformations in other domains.

This Article critically assesses Bruen’s test and, in the process, raises concerns about other areas of rights jurisprudence trending in ever more historically inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and several unworkable features. Centrally, it underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court attempts to justify. The Article then synthesizes and analyzes the results from more than three hundred lower federal court decisions applying Bruen, which collectively reveal the test’s fundamental unworkability.

On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and amplifies arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s gaps and mitigate its open texture, and suggests that courts are justified in reading Bruen narrowly. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.


Norm Commandeering and the Tobacco Trust

George F. K. Werner | PDF

In the early 1870s, Durham became a major center of tobacco marketing. Farmers brought their crops to auction warehouses, which then sold them to the town’s manufacturers. This was a process facilitated by a well-developed system of social norms. But the formation of the American Tobacco Company’s “tobacco trust” in the 1890s threatened that arrangement—buyers conspired to pay less per pound of tobacco, and warehousemen lost the ability to police buyers’ conduct. When farmers attempted to organize in response, geographic and social distance caused their efforts to fail. By the time federal courts dissolved the trust in 1911, the damage had already been done.

This Note’s historical analysis will be relevant for scholars of both informal ordering and competition law. For the former, it shows that some norm systems depend on the presence of competition. Informal ordering can, of course, also be a response to a lack of competition. But the possibility of collective action problems means that attempts to organize in reaction will often fail. For scholars of competition law, the possibility of norm commandeering provides a concrete example of how concentrated market power can affect economic and social dynamics.

The Last Black Tobacco Union: Local 208, Segregated Seniority, and the Integrating South

Kathy Rong Zhou | PDF

After federal reforms in the 1930s protected the right to organize, the Tobacco Workers International Union made quick work of mobilizing the American South. Its unions, though segregated, made strides. Yet Black unions’ collective bargaining gains could not transcend one of the South’s most oppressive employment practices: segregated systems for worker seniority. One Black union, Local 208 at Liggett & Myers Tobacco Company in Durham, North Carolina, fought for seniority rights for more than three decades. During this time, the federal government increasingly pressured Southern industry and labor to desegregate. Steadfast, Local 208 refused to merge with any white union until its members attained a more equitable seniority system. This start-to-finish history of Local 208 demonstrates how federal desegregation initiatives both encouraged and interfered with Black workers’ fight against discrimination. Embodying the post–Civil War, pre–Civil Rights Act era of Black Southern tobacco labor, Local 208’s decades-long fight presents a precise illustration of the need for the landmark Title VII remedies soon to come.