Academic

Manian on Borgmann on Facial Challenges

By Lawrence Solum

Maya Manian (University of San Francisco School of Law) has posted Rights, Remedies and Facial Challenges (36 Hastings Constitutional Law Quarterly, Vol. 36, p. 611, 2009) on SSRN. Here is the abstract:

This brief comment extends upon a key point raised by Caitlin Borgmann?s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann?s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts? manipulation of procedural rules regarding as-applied and facial challenges to cloak its overruling of substantive precedent. This comment also suggests that, given an environment of hostility towards facial challenges, civil rights litigants might better succeed in preserving constitutional rights by seeking narrower injunctive remedies against unconstitutional regulations rather than seeking total invalidation of such regulations.

Full post as published by Legal Theory Blog on April 29, 2009 (boomark / email).