Rights and rules: An Overview

Legal Theory

Volumn 6, Issue 3, 2000, Pages 241-251

  Adler, Matthew D ^a   Dorf, Michael C ^b  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

^b The Earth Institute at Columbia University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84856414895     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: None     Document Type: Article

References (12)

1. For a flavor of the former view, see Baker v. Carr, 369 U.S. 186, 266-330 (1962) (Frankfurter, J., joined by Harlan, J., dissenting). For the modern view, see id. at 208-37 (opinion of the Court) (holding that an equal protection challenge to state legislative apportionment did not present a political question).
2. See, e.g., Warth v. Seldin, 422 U.S. 490 (1975) (denying standing to low and moderate income plaintiffs claiming that town's exclusionary zoning practices denied them housing); id. at 519 (“Standing has become a barrier to access to the federal courts, just as ‘the political question’ was in earlier decades.”) (Douglas, J., dissenting).
3. See, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that a challenge to the Senate's use of a committee to hear testimony for judicial impeachment presented a political question); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (denying standing to environmentalists suing the Secretary of the Interior to require consultation regarding the environmental impact of overseas projects).
4. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (“[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”).
5. See Michael C.Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L.REV. 235, 271-76 (1994); Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 859 n.29 (1991).
6. Compare Janklow v. Planned Parenthood, 517 U.S. 1174, 1175 (1996) (Stevens, J., concurring in the denial of certiorari) (criticizing “dicta” in United States v. Salerno, 481 U.S. 739 (1987), on the grounds that it “'does not accurately characterize the standard for deciding facial challenges,’ and ‘neither accurately reflects the Court's practice with respect to facial challenges, nor is it consistent with a wide array of legal principles.’”) (quoting Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 236, 238 (1994) with Janklow, 517 U.S. at 1180 (Scalia, J., dissenting from the denial of certiorari) (disagreeing with the “head-snapping proposition” that the Salerno standard never was the law).
7. Compare id. at 1858 & n.22 (plurality opinion) (stating that facial challenges are authorized where a law is alleged to be unconstitutionally vague and going on to question the applicability of Salerno to cases originating in state court) with id. at 1869-71 (Scalia, J., dissenting) (asserting Salerno's applicability to the challenged ordinance).
8. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb (Supp. V 1993)).
9. See Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. REV. 1465, 1468 n.6 (1999) (collecting statutes and bills).
10. See City of Boerne v. Flores, 521 U.S. 507, 544-45 (1997) (O'Connor, J., dissenting); id. at 565 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting).
11. See Matthew Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1, 13 (1998).
12. See Frederick Schauer, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULEBASED DECISION-MAKING IN LAW AND IN LIFE 17-37 (1991).