US v. Morrison

[Janet Alexander]

         Rehnquist and the Judicial Conference lobbied Congress against 
VAWA on the ground that it would flood the federal courts with 
insignificant domestic violence cases.  When Congress passed it 
anyway,  the Court struck it down.  Cf. the "domestic relations exception" 
to diversity jurisdiction which (like modern 11th amendment jurisprudence) 
finds no support in the constitutional text.  Judith Resnik's 
"Housekeeping," which traced federal jurisdiction's gender bias, continues 
to ring true.
         Of course the animus toward VAWA doesn't help one provide students 
with a principled doctrinal explanation.
                 -- Janet Alexander

At 10:52 AM 10/25/2005 -0400, Jessica Silbey wrote:

>In teaching section V jurisprudence at the end of a unit on federalism 
>(commerce clause, tenth amendment, etc.) in our constitutional law course, 
>I find myself regularly perplexed by Rehnquist s opinion in US v. Morrison 
>regarding the deficiency of VAWA as regards Congress section V 
>power.  Other than the state action problem, which I understand and can 
>explain to my students (I hope) with a sufficient amount of clarity e.g., 
>that VAWA visits no consequence on state actors for their alleged 
>discriminatory behavior in prosecuting gender-motivated crimes and 
>therefore does little, if anything, to prevent the states from further 
>discriminating in violation of the Fourteenth Amendment how else is VAWA 
>incongruent and out of proportion to the wide-spread harm of gender 
>discrimination that Congress documented and 21 states admitted to (and 
>sought help to combat)? Perhaps this is enough.  But I wonder, especially, 
>because VAWA appears (and I could be wrong about this) to be in 
>substantial ways duplicative of state laws in making illegal certain forms 
>of gender discrimination and criminal activity.  Other than Scalia s 
>tautological comment during oral argument that section V does not provide 
>as a remedy the state s failure to abide by the Constitution the federal 
>government s abolition of the federal system I am struggling to understand 
>the majority s position that VAWA is a usurpation of congressional power 
>to the detriment of state autonomy under section V.
>
>
>
>Off line replies are welcome.  Thanks.
>
>
>
>Jessica
>
>
>
>________________________________
>
>Jessica Silbey
>
>Assistant Professor of Law
>
>Suffolk University Law School
>
>120 Tremont Street
>
>Boston, MA 02108
>
>617-305-6270 (office)
>
>617-305-3079 (fax)
>
><mailto:jsilbey at suffolk.edu>jsilbey at suffolk.edu
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051025/e88f2d4a/attachment.html