Article

Ambivalence About Formalism

In statutory interpretation, many scholars try to reconcile judicial power with democracy by cabining judicial discretion and rendering judges more faithful agents of Congress. Although debate pervades the field, the dominant approach is to rely on formalism to narrow judicial leeway and promote legislative supremacy. In constitutional theory, by contrast, many scholars respond to a very similar problem with a very different strategy. Here too, the concern is that judges will exercise power in a manner that substitutes judicial preferences for political will, and here too, there is as much disagreement as agreement. But instead of casting judicial discretion as the source of the problem, there is a growing trend in constitutional scholarship toward embracing judicial discretion as part of the solution. Many constitutional theorists urge judges to employ discretionary tools in a manner that limits their intrusions into the political process and minimizes the disruption associated with judicial review. These constitutional scholars tend to reject formalism in favor of a form of minimalism that is in many respects the antithesis of formalism.

Professor Molot suggests that both sets of scholars have gone too far in their positions on formalism. Statutory scholars often overlook the importance of judicial flexibility as an antidote to the excesses of formalism. Constitutional scholars often overlook the importance of formal constraints and fidelity to law. Using administrative law as a counterexample, Professor Molot sketches out a more balanced approach to formalism that he argues is superior to the one-sided approaches that have increasingly characterized statutory and constitutional scholarship today.

The Dark Side of Town: The Social Capital Revolution in Residential Property Law

Social capital has pervaded property law, with scholars and policy-makers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital—its capacity to effectuate local factions and to promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, land cartels, and residential self-governance. First, contrary to the assumption of a social capital deficit, residential racial segregation and land cartelization, perhaps the deepest imprints on the American property landscape today, suggest an abundance of local social capital and possible unintended consequences of interventions to build social capital. Second, “governing by social capital,” or relying on social capital for property self-governance, may empower factions, breed conflict, and increase the demand for residential homogeneity as a proxy for cooperation. In light of the mixed evidence for social capital’s benefits and its sizeable dark side, the more pressing and productive role for property law is not to promote social capital, but to address its negative spillovers and illiberal effects.

A Constitutional Theory of Habeas Power

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as ‘lawful’ custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. ‘A Constitutional Theory of Habeas Power’ is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum of habeas process.

I argue that Article III combines with the Suspension Clause to guarantee habeas process and to specify the exclusive conditions by which Congress may restrict it. My ‘Habeas Power Theory’ has two global principles: (1) that the constitution entitles all federal prisoners to some quantum of habeas (or substitute) process before an Article III judge; and (2) that, absent a formal suspension, the constitution does not permit Congress to restrict judicial power to determine what constitutes proof of lawful custody.

By cohering the new writ history, decisional law, and maxims of federal jurisdiction, I sketch a theory for how judges ought to use habeas to test different forms of federal power—for immigration, military, and criminal custody. ‘Habeas Power’ represents an entry in a new thread of habeas literature, growing out of the War-on-Terror litigation and focusing on what one might call the ‘core features’ of the writ. Methodologically, the Article embraces the renewed emphasis on pre-Revolutionary English writ practice and habeas suspension statutes. It is also the scholarship’s most extensive treatment of habeas jurisdiction as an Article III remedial power over federal custody. By formulating the habeas authority as a power of judges, I try to square an affirmative constitutional guarantee of habeas process with more established maxims of federal jurisdiction.

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