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Session Summary: Legislative Generality and the Constitution

August 8, 2018
submitted by Caprice Roberts & Howard Wasserman

Legislative Generality and the Constitution: Klein, Equal Protection, and Legislative and Presidential Singling-Out

Four presenters considered the structural and individual-rights issues arising from legislative efforts to resolve specific problems involving specific people or issues, while preserving the distinct powers and functions of the legislative and judicial branches. William Araiza (Brooklyn) explored the scope of “class-of-one claims” under the Equal Protection Clause. He also addressed the confusion in the Supreme Court and lower courts over the scope of such claims, including the need for a showing of animus or badfaith intent to prevent the claim’s expansion. Evan Zoldan (Toledo) presented his article, “Tesla Laws” and the Quality of Special Legislation, in which he examines the costs and benefits of special legislation, that is, legislation targeted to reach a particular individual or small, identifiable group rather than general applicability. He explained potential problems with special legislation, including the risk of corruption and lack of deliberation. After identifying these costs and benefits, he proposed changes to the legislative process that will reduce these costs while still retaining some of the benefits of special legislation. Charles “Rocky” Rhodes (South Texas-Houston) explored historical treatment of private legislation under state constitutions, discussing other judicial doctrines restraining the power to create special legislation. Caprice Roberts (University of Florida) closed the panel with a focus on the importance of a “dialogue” between the legislative and judicial branches—how each signals its policy goals to the other through special legislation and judicial opinions. She explored the narrow, splintered plurality in Patchak to show how perhaps Klein remains a useful shield to congressional encroachment into the judicial function via special legislation.

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