Articles
Local Rulemaking
Zachary D. Clopton & Marin K. Levy | PDF
Any case heard in a United States federal court must adhere to a set of rules—or rather, a few different sets of rules. Regardless of the subject matter of the suit, the parties (and the judge) must follow the relevant Federal Rules. But that is not all. Parties bringing the case must also comply with local rules—those important rules that govern litigation in the space between and around the Federal Rules. These district- and circuit-specific rules govern highly consequential aspects of federal litigation, such as how cases will be assigned to judges, how those cases will then be managed, and whether final decisions will be public and precedential. One would think, as with the Federal Rules, that the process by which such rules are made is well studied. Yet little is known about the process of making local rules, even by the judiciary itself.
This Article is a comprehensive study of local rulemaking in federal district and appellate courts. It includes a first-of-its-kind empirical examination of the rulemaking structure of all ninety-four district and thirteen circuit courts. And it synthesizes qualitative data derived from interviews of fifty rulemakers, including judges, attorneys, and clerks of court. This thick description permits analysis of how local rulemaking processes vary from court to court and vary from the well-studied federal rulemaking process.
Putting this information together also permits a more normative and prescriptive analysis. We focus on the values that both Congress and the federal rulemakers have identified in rulemaking: procedural regularity, transparency, public participation, and information sharing. We show where local rulemaking falls short on these dimensions, and we conclude by offering ways to address such shortcomings—ways that reflect the dynamic system of national, local, and individual judge rulemaking that we document throughout. Ultimately, we hope to improve the process by which local rules are made, and, with it, the rules governing litigation going forward.
The End of Means-End Scrutiny
Francesca Procaccini | PDF
It is black-letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, the Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and tradition tests, the transformation of equality doctrines, and the embrace of formalist rules to govern constitutional law.
This Article provides a complete and interconnected critique of the numerous doctrinal transformations that together comprise the larger constitutional revolution of ending means-end scrutiny. It tracks how this upheaval now touches nearly every fundamental right and important federal power—but not in exactly the same way. Rather, the Court has tailored the end of means-end scrutiny to benefit the same subset of authorities, rights, and groups. In particular, the end of means-end scrutiny has reoriented the landscape of constitutional law to weaken federal authority, strengthen protection for libertarian as opposed to egalitarian rights, and benefit private power and dominant political, economic, and social groups.
The upshot of this patterned end of means-end scrutiny is a foundational change not just to the prevailing methodology of constitutional adjudication but also to the very nature of constitutional rights and judicial review. By eliminating consideration of governmental means and ends from the construction of rights, the Court has crafted a new form of judicial review that is court-centric, formalist, and dominance-reinforcing. The Article tracks and critiques this doctrinal and theoretical transformation, connecting it to the most salient debates in constitutional law today and exposing the deep and troubling consequences of the seismic—and yet largely silent—collapse of means-end scrutiny.
Notes
Supervising the Omnipresent Casino: Evaluating the Role of State and Local Regulation in Stemming Youth Addiction to Sports Gambling
Matthew Connor Flink | PDF
Since 2018, state legalization of sports betting and the industry’s corresponding proliferation has driven an epidemic of youth addiction. Current state legislation and regulations do little to combat youth addiction. Many legal scholars emphasize the value that a federal regulatory regime would provide to reign in youth sports betting. This Note explores the value that state and local government can have in the sports gambling space. To illustrate the unique importance of state and local legislation and regulation of sports betting, this Note analogizes to another addictive product with a history of youth addiction: nicotine.
Nicotine has been a regulatory target of states and localities for decades. By investigating the analogous histories of the nicotine and sports betting industries, this Note highlights three main advantages to allowing states and localities to regulate an addictive product: speed, proximity to constituents, and the ability to experiment with policy innovation. At bottom, this Note asserts that regardless of the prospect of federal sports betting legislation, state and local governments must remain empowered to legislate and regulate sports betting.
The Fourth Amendment’s Failure to Protect Against Mass DNA Collection at the Border
Zoe Holtzman | PDF
The U.S. government has long surveilled immigrant communities by collecting identifying information, including biometric data. The passage of the DNA Fingerprint Act of 2005 expanded the possible sources of data to include DNA. In 2020, the Trump administration seized on the permissive language of the statute to require that DNA be collected from nearly every noncitizen detained by the federal government. Now, 2.6 million noncitizens and counting have their DNA permanently stored by the federal government. This expansive surveillance program operates despite the Fourth Amendment’s promise of protection because of the exceptionalism of both DNA searches and the border in contemporary Fourth Amendment jurisprudence. However, even if a constitutional violation could be established, noncitizens lack a meaningful legal remedy.
"The Persistent and Muddy Dispute": How the Facial/As-Applied Distinction Creates Problems for Constitutional Litigants
Sean P. Wilson | PDF
The distinction between facial and as-applied challenges continues to play a central role in constitutional litigation, including at the Supreme Court. Yet, the distinction and its related rules have long suffered from a lack of doctrinal clarity and consistency. This Note sets out a descriptive taxonomy of three problems facing constitutional litigants because of the murkiness surrounding the facial/as-applied distinction.
First, the “Doctrinal-Test Problem” refers to the fact that many constitutional doctrines appear to require the courts to engage in facial adjudication, even if a litigant wishes to bring an as-applied claim. Thus, as-applied litigants are forced into facial challenges, even where a facial challenge has no hope of success. Second, the “Factual-Scope Problem” refers to uncertainty regarding the breadth of factual pleading needed to succeed in a facial or as-applied challenge. For instance, facial claimants may be required to make arguments about the total factual scope of a challenged statute, despite the conceptual difficulty of anticipating the statute’s full reach. Conversely, courts might hold plaintiffs to a facial standard merely because they have broadly introduced facts, even if plaintiffs intend to raise only as-applied claims. Finally, the “Jurisdictional Problem” arises when a court’s jurisdiction is tied to the facial/as-applied distinction. When this occurs, the question of a court’s jurisdiction becomes particularly difficult for litigants to evaluate because of the ambiguity of the facial/as-applied distinction. This Note illustrates these three problems primarily through the discussion of recent transgender rights cases in which the facial/as-applied distinction has proven decisive.
By recognizing and reckoning with these problems, courts and policymakers will be better positioned to offer doctrinal clarity regarding the facial/as-applied distinction. Additionally, this Note’s taxonomy helps litigants assess how to frame their constitutional claims, including at the pleadings and discovery stages of litigation.