VOLUME 169, ISSUE 5 April 2021

Articles

The Supreme Court as Bad Teacher

Justin Driver

Since the 1950s, prominent constitutional law professors have often invoked the notion that the Supreme Court acts as an educational institution in American society. On this view, legal scholarship portrays the Supreme Court as a beneficent and inspirational teacher, one who is responsible for imparting unusually enlightened values on the nation. Despite this uplifting analogy’s prevalence within constitutional discourse, two persistent criticisms have unsettled the notion that the Supreme Court in fact teaches any lessons at all through its written opinions. First, critics observe that citizens are generally unaware of even highly salient Supreme Court opinions, and it is hard for people to obtain a lesson from something they do not know. Second, critics note that claims extolling the Court’s educational capacities unfold almost exclusively on an abstract level, rendering it virtually impossible to determine whether anyone has absorbed the Court’s ostensible lessons and how that absorption occurred.

Vested Rights, “Franchises,” and the Separation of Powers

Caleb Nelson

Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks that Congress can authorize administrative agencies to perform in the course of “executing” federal law. In a prior article (Adjudication in the Political Branches, 107 COLUM. L. REV. 559 (2007)), I sought to explain traditional doctrines on that topic. For much of American history, Congress could authorize executive-branch agencies to administer and dispose of “public rights” belonging to the federal government or the people collectively, and Congress also could give agencies conclusive authority with respect to the administration of “privileges” that federal law gave private individuals or entities. But the political branches did not have similar sway over vested private “rights.” Only true courts could conclusively determine either that a private person had forfeited such rights or that the claimed rights had never vested in the person to begin with.

Comments

Is Sunlight the Best Disinfectant? Reassessing BEPS Action 5’s Tax Ruling Transparency

Patrick Hasson

The OECD's BEPS Project was a major attempt to harmonize tax principles across jurisdictions and prevent tax-motivated artificial profit shifting. One portion of the BEPS Project is Action 5's tax ruling transparency framework. High-profile instances of tax avoidance, such as LuxLeaks and the Apple/Ireland state aid case, have only elucidated the extent to which tax authorities can use rulings to facilitate tax avoidance. However, it should not be expected that Action 5's tax ruling transparency will materially curb the use of rulings to aid tax avoidance.

Coercion, Criminalization, and Child ‘Protection’: Homeless Individuals’ Reproductive Lives

Bridget Lavender

The U.S. Supreme Court has long recognized the constitutional importance of reproductive autonomy. However, for the unhoused the guarantees of this right can be seen as fictitious promises. This Comment aims to explore the continuum of limitations on reproductive autonomy faced by homeless individuals, and its implications for reproductive rights and justice. Homeless individuals encounter a web of overlapping and mutually reinforcing constraints on their reproductive autonomy at several stages of their reproductive lives—when they are not pregnant but have the capacity to be, during their pregnancy, and as they raise their children. First, in seeking welfare assistance and other public benefits, homeless individuals face significant coercive pressure towards marriage and/or away from pregnancy. Second, homeless individuals are particularly susceptible to the criminalization of pregnancy, which serves to further entrench their poverty. Finally, after a homeless individual gives birth, their lack of housing makes them and their families more susceptible to the child-welfare system, where they may eventually lose their child. In this Comment, I offer close examination of the above constraints and the way in which they subject the homeless population to unjust limitations on their fundamental right to decide “whether to bear or beget a child.”