THE CULT OF CONSTITUTIONALISM
Constitutionalism compels and constrains all dimensions of our everyday lives in ways large and small that we often do not fully appreciate—perhaps because constitutions take many forms that we do not generally associate with constitutionalism. From the arts, sports, trade, entertainment, politics, and war, constitutionalism is both the point of departure and the port of call. In this Article, I explore whether and how we might distinguish among these seemingly infinite types of constitutions.
First, I critique conventional distinctions separating public from private constitutions, and international from national and local constitutions. Then, I build on that deconstructive exercise to propose a theory of constitutionalism that distinguishes between constitutional basics and constitutional virtues. I subsequently undertake a comparative inquiry, applying this new model of constitutionalism to ask on what basis we might distinguish between a constitution of a nation from a constitution of a private organization.
IQBAL AND INTERPRETATION
Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision’s constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers about Iqbal is its suggestion that district court judges must interpret a civil complaint in order to decide whether it states a claim. As this Article explains, however, pleading scrutiny always has involved interpretation; if we find that suggestion troubling, it is only because the vocabulary we have long used to discuss the role and treatment of civil pleadings represses this fact. The Article describes the ways this vocabulary has shaped the debate over Iqbal and the contingent historical reasons for its dominance. Looking forward, it shows how Iqbal makes possible a new agenda for procedural scholarship that draws from work on other types of legal interpretation, and it suggests some of the specific ways in which this perspective can guide implementation of Iqbal and clarification of its requirements.
THE TERMS OF THE DEBATE: LITIGATION, ARGUMENTATIVE STRATEGIES, AND COALITIONS IN THE SAME-SEX MARRIAGE STRUGGLE
Why, in the face of ongoing criticism, do advocates of same-sex marriage continue to pursue litigation? Recently, Perry v. Schwarzenegger, a challenge to California’s ban on same-sex marriage, and Gill v. Office of Personnel Management, a lawsuit challenging section three of the federal Defense of Marriage Act, have created divisive debate. Leading scholarship and commentary on the litigation of decisions like Perry and Gill have been strongly critical, predicting that it will produce a backlash that will undermine the same-sex marriage cause.
These studies all rely on a particular historical account of past same-sex marriage decisions and their effect on political debate. According to this account, the primary effect of same-sex marriage litigation has been the mobilization of conservative opponents of the cause. Groups like the Family Research Council and Focus on the Family successfully organized efforts to elect opponents of same-sex marriage and to introduce state constitutional bans.
However, the historical account underlying these criticisms of same-sex marriage litigation is fundamentally incomplete. Leading studies have missed important effects, such as advocacy groups using judicial decisions on same-sex marriage as opportunities to change the rhetorical strategies and coalitions that define the debate. National gay rights groups like the Freedom to Marry Coalition and the Human Rights Campaign responded to important same-sex marriage decisions by stressing equality-based claims. Socially conservative organizations like the Family Research Council increasingly emphasized religious freedom or parental rights. At the same time, seemingly because of the decisions, alliances shifted. Labor and libertarian groups played a less central role while civil rights groups began shaping the alliances on either side. These developments may well prove to be favorable to the same-sex marriage cause.
At this point it is difficult to assess whether the changes studied here will benefit the same-sex marriage movement in the long term. However, without studying all the effects of same-sex marriage litigation, current conclusions about its value are premature and potentially flawed. Litigation might prove to have been much more strategically advisable than some current scholarship suggests. At the very least, the litigation campaign should be judged not by an incomplete historical account but by an assessment of its full impact.
SECTION 933(b): NIMBLE PRIVATE REGULATION OF THE CAPITAL MARKET GATEKEEPERS
Eric S. Pendergraft
Leading up to and during the financial crisis of 2007-08, inaccurate ratings from credit rating agencies contributed to systemic risk mismanagement by investors in asset-backed securities, which fueled an asset bubble and led to the collapse of asset prices and capital markets. These inaccurate ratings stemmed from a toxic mixture of factors—conflicts of interest, under resourcing, flawed models, information asymmetry, and a reduction in the need to maintain reputational capital.
“BULL” COMING FROM THE STATES: WHY THE SUPREME COURT SHOULD USE WILLIAMS V. ILLINOIS TO CLOSE ONE OF BULLCOMING’S CONFRONTATION CLAUSE LOOPHOLES
Tara R. Price
Imagine that you are selected as a juror in a trial where the defendant is accused of driving while under the influence of alcohol. You listen to the police officer who testifies that he observed the defendant and believed him to be intoxicated. You hear about how, after obtaining a warrant, the officer took the defendant to the emergency room for a blood-alcohol test. The police officer finishes his testimony, and the next witness will testify about the results of the defendant’s blood-alcohol test.