Judicial Capacity and the Conditional Spending Paradox
This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision-making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping off point, this examination yields three important payoffs: First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle -- a view the Article dubs the "conditional spending paradox." Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.
Judicial Capacity and the Substance of Constitutional Law
Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This paper advances a twofold thesis. First, constraints on judicial capacity derive from a combination of the hierarchical structure of the judiciary and broadly held judicial norms. Second, in certain important constitutional domains, these constraints create strong pressure on courts to adopt hard-edged categorical rules, defer to the political process, or both. The argument is mostly positive but has significant normative implications. In particular, the constraints of judicial capacity suggest a new and previously unexplored justification for courts to defer many constitutional questions to the political process. Capacity constraints also help to explain the reluctance of courts to challenge political majorities, diminishing though not eliminating the countermajoritarian difficulty. For these reasons and others, judicial capacity deserves a central place on the agenda of constitutional theory.
Anaesthetic aspects of bronchial fistula.
SINCE the term bronchial fistula can, from the practical point of view, be applied to any abnormal connection between the inside of the intrathoracic respiratory system and the outside, it includes a very wide assortment of cases. Fistulae vary in their acuteness and duration from a few minutes up to thirty years or more (Huizinga and Smelt, 1950), and in their consequences from the rapidly fatal to the almost insignificant. Although the anaesthetic management of these cases falls mainly within the province of those working in specialized units, any anaesthetist may be caught unawares from time to time. Quite apart from this consideration the subject is well worth discussing because of its intrinsic interest and because it has probably called for as much anaesthetic ingenuity and resourcefulness as any other subject within the specialty.