Volume 90, Number 6

December 2015

Make Me Democratic, But Not Yet

Daniel E. Herz-Roiphe, David Singh Grewal

Sunrise Lawmaking and Democratic Constitutionalism

“Sunrise amendments”—constitutional provisions that only take effect after a substantial time delay—could revolutionize American politics. Yet they remain undertheorized and unfamiliar. This Article presents the first comprehensive examination of sunrise lawmaking. It first explores a theoretical puzzle. On the one hand, sunrise lawmaking resuscitates the possibility of using Article V amendments to forge “a more perfect union” by inducing disinterested behavior from legislators. On the other, it exacerbates the “counter-majoritarian difficulty” inherent in all constitutional lawmaking. When one generation passes a law that affects exclusively its successors, it sidesteps the traditional forms of democratic accountability that constrain and legitimate the legislative process. The Article accordingly argues that while sunrise lawmaking holds considerable promise, it should be confined to “democracy-enhancing” reforms that increase future generations’ capacity to govern themselves. With this normative framework in place, the Article turns to the question of how time delays have actually been used in American constitutional history. It identifies six different instances of sunrise lawmaking in the U.S. Constitution. It argues that several of these illustrate how sunrise lawmaking can enhance the democratic character of American government, but at least one offers a cautionary tale of how temporal dislocation in constitutional lawmaking can have pernicious consequences.

The Lost History of the Political Question Doctrine

Tara Leigh Grove


Democratic Policing

Barry Friedman, Maria Ponomarenko

Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.

This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.


An Adverse Reaction: FDA Regulation of Generic Drug Labeleing

Mitchell Russell Stern

Thanks to a streamlined approval process under the 1984 Hatch-Waxman Act, generic drugs have largely helped make prescription medications in the United States more affordable by providing an essentially identical product at a lower price. While generics may appear to be a perfect substitute for brand-name pharmaceuticals, consumers injured by prescription drugs may encounter an unexpected difference: because federal regulations severely restrict the ability of generic manufacturers to unilaterally update their warning labels, the Supreme Court has held that many products liability claims against generic manufacturers are pre-empted. At the same time, the Court has held that identical claims against brand name manufacturers remain viable. In response, the Federal Food and Drug Administration (FDA) has recently proposed a rule that would purportedly “fix” this asymmetry by allowing generic manufacturers to make labeling changes without prior FDA approval, even if it results in a brand-name drug and its generic “equivalent” bearing different warning labels.

This Note argues that the FDA’s response, while well intentioned, loses the forest for the trees by overvaluing compensation for injured consumers at the expense of low-cost generic drugs and accurate, consistent information for consumers. Instead, both the Agency and consumers injured by generic drugs should focus on discrepancies that already exist—that violate FDA regulations—between generic and brand name labels. Such cases not only present an information problem that should be corrected, but they may also provide a viable avenue for litigating products liability claims. While there is currently a circuit split on the issue, this Note explains why these failure-to-update claims should not be preempted. Moreover, given that such differences may occur in a majority of generic drug labels, these claims offer the possibility of recovery for a significant number of consumers.

Resegregation and Nonparty Preclusion

Steven D. Marcus

A discriminatory school district is sued, placed under court supervision, remedies the discrimination, and is released from court supervision. What next? There is a growing, and worrisome, trend towards the resegregation of schools following their release from supervision. While the problems of resegregation have recently drawn attention among social scientists and journalists, the procedural hurdles to litigating a claim of resegregation remain largely unexamined. Indeed, certain procedural hurdles could greatly impede litigation to challenge resegregation. This Note examines the defense of preclusion in the resegregation context, and concludes that in two categories of cases—pre-1966 class actions, and post-1966 “implied” class actions—school districts cannot rely on preclusion to defeat an action challenging resegregation. The first category, pre-1966 class actions, were filed before the 1966 Amendments to Rule 23, which provide greater procedural protections to ensure adequate representation. The second category, implied class actions, were filed after the 1966 amendments, never formally certified as class actions, but informally treated as such by courts. Because many pre-1966 class actions and post-1966 implied class actions do not provide the procedural protections to satisfy the constitutional requirement for adequate representation, judgments releasing school districts from court supervision cannot properly bind future plaintiffs challenging resegregation.

Reconciling Rational-Basis Review

Raphael Holoszyc-Pimentel

When Does Rational Basis Bite?

Traditionally, rational-basis scrutiny is extremely deferential and rarely invalidates legislation under the Equal Protection Clause. However, a small number of Supreme Court cases, while purporting to apply rational-basis review, have held laws unconstitutional under a higher standard often termed “rational basis with bite.” This Note analyzes every rational-basis-with-bite case from the 1971 through 2014 Terms and nine factors that appear to recur throughout these cases. This Note argues that rational basis with bite is most strongly correlated with laws that classify on the basis of an immutable characteristic or burden a significant right. These two factors are particularly likely to be present in rational-basis-with-bite cases, which can be explained on both doctrinal and prudential grounds. This conclusion upends the conventional wisdom that animus is the critical factor in rational basis with bite and reveals that other routes to rational basis with bite exist. Finally, this Note observes that applying at least rational basis with bite to discrimination against gay, lesbian, bisexual, and transgender individuals is consistent with the pattern of cases implicating immutability and significant rights.

Good for the Gander, Good for the Goose

Gabriel Ascher

Extending the Affordable Care Act Under Equal Protection Law to Cover Male Sterilization

The Affordable Care Act requires coverage for female but not male sterilization, a disparity that this Note refers to as the Sterilization Gap. Although female sterilization is more dangerous, more expensive, and less effective than male sterilization, the Sterilization Gap incentivizes women to be sterilized rather than men. This Note argues that sterilization coverage should be extended to men. Because courts are empowered to extend underinclusive laws—like that which creates the Sterilization Gap—if they find them unconstitutional, litigation may be the best method of extending coverage. This Note presents a comprehensive argument for why the Sterilization Gap is unconstitutional and coverage should be extended. First, it argues that the Sterilization Gap is a facial sex classification because both sexes can be sterilized, even though the procedure is sex specific. Next, it argues that the classification violates constitutional equal protection law, because it is not based on a biological difference and does not remedy discrimination against women. Then, it argues that the classification was created either through impermissible oversight or gender stereotypes, and that it will perpetuate the stereotype that contraception is a woman’s responsibility, to the detriment of both sexes. Finally, it concludes by asserting that had Congress known that the Sterilization Gap was unconstitutional, it would likely have chosen to extend coverage to men rather than nullify the law, because extension would further its goals while causing comparatively little disruption to the statutory scheme.