Brannon P. Denning’s research while affiliated with Samford University and other places

Much of the literature on risk regulation concerns “first-order” risks — e.g., those addressed by environmental law or workplace safety rules. But scholars recently have suggested that risk regulation can provide a helpful framework for thinking about “second-order,” or political, risks arising from allocations of power and institutional design. Although a few commentators have utilized this perspective to suggest connections between risk regulation and particular areas of constitutional law, in this essay, we take a broader view. Building on the existing literature, we argue that the selection of constitutional decision rules is a judicial effort to regulate the political risk that government officials will violate constitutional principles. After making the case that judicial doctrinal formation is helpfully viewed as a species of political risk regulation, we discuss some implications of this risk regulation model and pose some questions for future research. We conclude that the risk regulation model reinforces the notion that the formation of doctrine is a temporally extended process, rather than a one-time event, and it provides a metric by which that doctrine can be evaluated. Additionally, the risk regulation model helps explain some of the more commonly critiqued features of constitutional law. Finally, the risk regulation model raises important questions that merit further investigation: (1) Should we trust judicial perceptions of and responses to political risk? (2) What influences risk assessment among judges, and are those influences (and resulting assessments) normatively defensible? (3) What connection, if any, exists between judicial risk assessment and the myriad doctrinal formulae employed by the Supreme Court?

In response to Gregory Magarian's Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 TEXAS L. REV. 49, 53–72 (2012), we argue first that the strict dichotomy he posits between an individual right to keep and bear arms aimed at deterring (and furnishing the means for ultimately opposing) governmental tyranny and a right securing the means for private self-defense is a false one. Further, we argue that, to the extent there is any tension between the First and Second Amendments, Heller and McDonald eased that tension by locating individual self-defense at the core of the right. Such “modernization” of the right is preferable to Magarian’s (implicit) conclusion that the Second Amendment should have no (or little) judicially enforceable content at all. Part II briefly summarizes Professor Magarian’s argument. In Part III, we then take issue with his conclusion that the only interpretation consistent with the Amendment’s text and history is that it was intended “to prevent a tyrannical government from disarming the people as a way to forestall popular insurrection” and that any other reading elides the Amendment’s “preamble.” In Part IV, we argue that Heller and McDonald’s placement of individual self-defense at the core of the right to keep and bear arms can be read as a product of judicial review’s “modernizing mission” — to borrow (and expand somewhat) a theory offered by David Strauss. The Court’s efforts, we argue, dissolve any ostensible tension between the rights guaranteed by the First and Second Amendments and should ease Professor Magarian’s anxieties about the suitability of an individual right to private arms ownership in a liberal democracy.

Among the various branches of the dormant Commerce Clause doctrine (“DCCD”) — the judge-made rules grounded in the Constitution’s grant of power over interstate commerce to Congress — is that which prohibits so-called “extraterritorial” state legislation. As recently as 1989, the Supreme Court held that the DCCD “precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State...” That broad articulation of the principle, however, represented extraterritoriality’s high tide. The Court has since retreated; in 2003 it seemed to limit the extraterritoriality principle dramatically, rejecting arguments that a Maine prescription drug subsidy program actually attempted to fix prices outside the state. At this point, the extraterritoriality principle looks to be quite moribund. This essay, then, is an autopsy of sorts. Assuming, as I do, that extraterritoriality — at least the strong form articulated by the Court in the 1980s — is dead, and unlikely to be revived by the current Court, its passing offers an opportunity to examine the lifecycle of constitutional doctrine, from birth to death. In Part I, I describe extraterritoriality’s early emergence. In its early form, it was not exclusively yoked to the DCCD. The Due Process Clause of the Fourteenth Amendment was also cited as a source, as were less clause-bound structural principles. Beginning in the early twentieth century, however, the doctrine became closely linked with the DCCD; it emerged as a robust branch of that doctrine in the 1980s. This association is described in Part II. Its decline is detailed in Part III; in Part IV, I return to the question of what “killed” extraterritoriality. I conclude that extraterritoriality’s demise was likely overdetermined. Factors contributing to its demise include what Kermit Roosevelt calls a “loss of fit” between the doctrine and the purposes of the DCCD generally, as well as the doctrine’s calcification; the lack of a limiting principle that would prevent it from curtailing legitimate state regulatory power; the Court’s decision to locate limits on punitive damage awards in the Due Process Clause after flirting with the notion that those limits grew out of DCCD extraterritoriality; and shift in attitude on the Court itself from robust enforcement of the DCCD to a desire to limit the doctrine. In Part V, I consider the impact of extraterritoriality’s demise on a related doctrine: the Court’s periodic invalidation of state laws that presented the problem of “inconsistent state regulations.” A brief conclusion follows.

Recent constitutional scholarship has focused on how courts — the Supreme Court in particular — “implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision making — strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this essay, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts — usually designed as standards, as opposed to rules — that supplement other doctrines (designed as rules) to implement particular constitutional principles.AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and the characteristics the forms share, this essay also seeks to describe the benefits and payoffs in constitutional law resulting from AEDs. On the plus side, AEDs are designed to help optimize enforcement of constitutional principles — by addressing “problems with rules,” for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, that complexity can increase decision costs for courts, and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.We also discuss the implications of AEDs for constitutional doctrine generally. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, and not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by the abandonment of the “formulaic Constitution,” in favor of simple, predictable, and easy to apply rules. In fact, the presence of AEDs furnishes strong evidence for Frederick Schauer’s “convergence hypothesis,” which holds that “when authorized to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules,” and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously.

In this article, following our now-famous “Five Takes” format, we will look at some possible meanings and implications of the Supreme Court’s decision. We first consider possible analogies between NFIB and two other famous cases whose opinions are held out as deftly straddling the line between principle and prudence: Marbury v. Madison and the Bakke case (Takes One and Two). Takes Three and Four examine the opinion though the lens of constitutional theory. We consider whether the decision, Chief Justice Roberts’s opinion especially, served what Charles Black called the Court’s “legitimating” function, quelling doubts about the Act’s constitutionality and, thus, its legitimacy. We further consider whether, in ultimately upholding the Act despite its relative unpopularity, Chief Justice Roberts’s opinion could be seen as an example of judicial restraint a la James Bradley Thayer. Finally, in Take Five, we consider that the peculiar construction of the opinion handed the Administration a somewhat Pyrrhic victory while laying the foundation for robust judicially-enforced limits on congressional power. A brief conclusion follows.

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their function in optimizing constitutional enforcement is likely worth the costs they impose.But the Court’s use of AEDs is not foreordained. In notable areas of constitutional doctrine, the Court has declined to create AEDs in situations that seemingly invite it to do so. This paper addresses this phenomenon, which we term “anti-anti-evasion,” and seeks to understand why the Court employs AEDs in some contexts but not in others. After furnishing a number of examples of anti-anti-evasion, we identify and evaluate the reasons the Court gives for declining to create AEDs. Because these reasons do not tell the whole story, we also pose a working hypothesis – i.e., the Court will not create AEDs where it believes that the constitutional principle is adequately protected by robust political safeguards, and this occurs primarily in cases involving taxing or spending decisions, including the provision of government-subsidized goods and services. Support for this hypothesis is found in a number of the Court’s AED and anti-anti-evasion decisions, including the much-awaited decision in National Federation of Independent Business v. Sebelius.Apart from academic curiosity, the hypothesis (if correct) has broader implications. First, it helps to demonstrate that the formulation of constitutional doctrine is a type of risk regulation where the Court employs decision rules in an effort to achieve optimal (as opposed to maximal) protections. Second, it expands on earlier work by other scholars that considered possible reasons for why the Court might choose one set of decision rules over another, thereby contributing to the ongoing effort to describe accurately what courts actually do when they decide cases. Third, our hypothesis hopefully will encourage the Justices to be more intentional in selecting among available decision rules, and perhaps more transparent in the reasoning behind the adoption of one set over others. Finally, our hypothesis should prove useful to practicing lawyers in crafting constitutional arguments.