First Amendment cases and federal power
7barksda at jmls.edu
Thu Apr 14 19:32:35 PDT 2005
If this is a keeping faith with students concern - I think there is a
good answer as to why lawyers should always raise legislative authority
issues, even though courts might not. Lawyers are responsible for
framing the questions that Courts eventually will decide, and lawyers
are responsible to their clients for making sure that they don't miss
issues that would be relevant to resolving the dispute. It is always
easy to assume that Congress has authority and thus to "miss the issue"
when it might be lurking in the background. Lawyers, if they are good
ones, won't fall into this easy trap - and will always identify the
question of federal legislative authority, and ask whether it is
present. If the answer is yes, great. If no, or if there is a credible
argument that the answer no, they will have earned their fee.
However, judges, whose responsibility is to decide cases, don't have to
address every issue, unless it is dispositive of their case. (see Eugene
reasons, etc). Once the student gets to be a judge, they will have the
same luxury. But not until then.
Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Thursday, April 14, 2005 4:46 AM
To: VOLOKH at law.ucla.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: First Amendment cases and federal power
If the authorization problem is obvious in most First Amendment
cases, it is difficult to see how Justices are acting out "of a sense
that they (usually) shouldn't decide controversial constitutional
questions unless they have to." Obviousness and controversy make
incompatible bedfellows. Time pressure certainly doesn't explain why a
perfunctory paragraph referring to the Commerce Clause, etc., is absent
in First Amendment cases. Finally, if we take seriously the idea that
the Constitution creates a limited federal government of enumerated
powers, and certainly Chief Justice Rehnquist among others are committed
to this idea, then analytic soundness should prompt (if not require)
them to address, albeit briefly, the authorization problem, whether
raised by the parties or not.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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