Recent Faculty Scholarship

Great scholarship serves the community in many ways. Brooklyn Law School’s faculty have produced a remarkable collection of work on a wide range of topics that have reached readers worldwide. They have influenced legislation, judicial decisions, and teaching methodologies. In this section is a small sampling of some of the more recent research that is a source of great pride for the Law School. Read more about the scholarship produced in the last several years.

rebecca kysar
Rebecca Kysar
Professor Rebecca Kysar
The ‘Shell Bill’ Game: Avoidance and the Origination Clause
91 Wash. U. L. Rev. __ (forthcoming 2014)

Abstract 
With increasing frequency, many important revenue laws, such as the Affordable Care Act and the American Taxpayer Relief Act of 2012, begin as “shell bills." The Origination Clause of the Constitution aims to place decisions over tax policy closer to the people by requiring that bills raising revenue begin in the House of Representatives, but the Clause also allows the Senate to amend such bills. The Senate has interpreted its amendment power broadly, striking the language of a bill passed by the House (the shell bill) and replacing it entirely with its own unrelated revenue proposal. According to a new challenge against the Affordable Care Act, this shell bill game is an unconstitutional sleight of hand because it obfuscates the bill’s true origins in the Senate.

The constitutional fate of the Affordable Care Act and myriad other revenue laws, as well as the intra-congressional balance of power over revenue policy, turns on the interpretation of the Senate’s power to amend revenue legislation, an analysis heretofore unexplored in the academic literature. This article draws upon constitutional text, history, and congressional and judicial precedent to conclude that such amendment power is broad and, accordingly, that the Affordable Care Act does not violate the Origination Clause. This article also proposes a conceptual framework for analyzing existing jurisprudence interpreting the Origination Clause — a “legislative process avoidance” doctrine, whereby the Court deflects searching review of lawmaking procedures. Grounded in constitutional text and history, theories of judicial review, and longstanding principles guarding congressional purview over internal rules, this legislative process avoidance doctrine further supports deference to the Senate’s expansive interpretation of its amendment power without rendering the Clause a nullity. Separation of powers concerns also show the doctrine’s promise in other constitutional contexts, such as the interpretation of gaps in the lawmaking process left open by Article I, Section 7.

William Araiza
Professor William Araiza
The Public Trust Doctrine as an Interpretive Canon
45 U.C. DAVIS L. REV. 693 (2012)

Abstract 
In this article Professor William Araiza considers the argument for understanding an expanded version of the public trust doctrine as an interpretive canon. He argues that a canon-based understanding fits both the doctrine’s foundational importance in American law and its uncertain doctrinal grounding. These characteristics have led scholars to advocate a canon approach for other foundational, but ambiguously-based, legal rules; Araiza suggests that an analogous analysis might support a similar approach to the public trust concept.

He then applies the canon approach, explaining how a canon would operate as a preliminary matter, and then considers the canon’s proper scope and concrete implementation. Next, he considers and answers objections to the canon approach, ultimately concluding that none of them defeats the basic thrust of the argument. Araiza concludes by suggesting that the canon approach accurately reflects the fundamental meaning of the public trust canon, as an instantiation of the foundational, but incompletely-enforced, public law principle that government regulate in pursuit of the public interest.

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