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Elizabeth Ippolito Boals, State v. Peyton: Case File and Teaching Guide (2nd ed., NITA, 2016)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Administrative Abstention, 67 Ala. L. Rev. 1019 (2016)Clicking on the button will copy the full recommended citation.
Abstention — a federal court’s decision to avoid interfering with an ongoing state proceeding — offers a snapshot into the foundations of our constitutional arrangement. In addition to notions of equity and comity, abstention conjures issues of federalism, the separation of powers, and democratic legitimacy. When abstention intersects with state administrative law, these issues take on new force and, in some instances, new meaning. Unlike state courts, administrative agencies occupy a tenuous position in a tripartite democracy and are tasked with making often difficult and controversial policy decisions. A federal court’s decision to interfere with that policymaking process has consequences for state government far beyond the interruption of a purely judicial proceeding. Yet despite the different stakes raised by administrative abstention, the Supreme Court and the academic literature have largely overlooked the unique interplay between abstention and administrative law. This Article recasts administrative abstention as a distinct species of abstention and evaluates it in terms of the principles of democratic legitimacy and good government that provide the foundation for the administrative state. Only by thinking of abstention in distinctly administrative terms can we fashion a relationship between federal courts and state agencies that protects the legitimacy of state administrative governance while maintaining a robust forum for the vindication of federal rights.
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Ashley Krenelka Chase, Leading with (Next to) Nothing: A Blueprint for Active Library Leadership When Times Are Tough, 24 Strategic Library 1 (2016)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Criminal Procedure: It Wasn’t Always So, 13 Ohio St. J. Crim. L. 469 (2016)Clicking on the button will copy the full recommended citation.
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Tim Kaye, Law of Torts (Webby Books, 2016)Clicking on the button will copy the full recommended citation.
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Ashley Krenelka Chase, Organizations and Workflow: Leveraging Your Library to Make the Most of DRM, in Digital Rights Management: A Librarian's Guide (Catherine A. Lemmer and Carla P. Wale eds., Rowman & Littlefield, 2016)Clicking on the button will copy the full recommended citation.
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James W. Fox, Counterpublic Originalism and the Exclusionary Critique, 67 Ala. L. Rev. 675 (2016)Clicking on the button will copy the full recommended citation.
This Article proposes a new form of originalism — Counterpublic Originalism — as a method to better incorporate excluded communities into the narratives of constitutional history. Looking at a broad range of originalists, from conservative (McGinnis & Rappaport, Calabresi & Rickerts) to progressive (Amar, Balkin), I find that each wrongly assumes some version of a single “public” at the time of ratification, a “public” comprised of the very elites who were benefiting from the exclusionary practices. Focusing on the Reconstruction period, I argue that there was no definitive “public” but instead a series of partial publics, some (white men) who were legally and socially privileged and dominant, and others (feminists, African-Americans) who operated as dissenting communities that developed their own normative discourse and challenged dominant views and interests. I then argue that these dissenting communities, or counterpublics, provide important sources of public discourse and activity that spoke to precisely the questions and ideas raised in constitutional amendments, and particularly in the Reconstruction Amendments. In the process I also challenge the Supreme Court’s and scholarly treatment of African-American materials on the meaning of the Second Amendment during Reconstruction.