Tsvety LL.M.

The Counter-Majoritarian Difficulty: Why Unelected Courts Can Override Democratic Decisions The counter-majoritarian difficulty is the constitutional and philosophical problem created when courts invalidate laws or government actions adopted by democratically elected institutions. The difficulty is straightforward: in a democracy, political decisions are ordinarily made by representatives chosen by the people, Read more

Judicial Restraint, Judicial Activism, and the Proper Role of Courts Judicial restraint and judicial activism describe competing approaches to the exercise of judicial power. Judicial restraint generally emphasizes limited judicial intervention, respect for precedent, constitutional text and structure, and deference to the elected branches when the Constitution does not clearly Read more

Constitutional Avoidance and Constitutional Interpretation: How Courts Read the Constitution Without Going Too Far Constitutional interpretation is the process through which courts determine the meaning of constitutional provisions and apply them to concrete legal disputes. Constitutional avoidance is a related but distinct principle: when a case can reasonably be resolved Read more

Severability: What Happens When Part of a Law Is Unconstitutional? Severability is the legal principle that determines whether the constitutional parts of a law can remain in force when another part of the law is found unconstitutional. Instead of automatically invalidating an entire statute because one provision is unconstitutional, a Read more

Facial vs. As-Applied Constitutional Challenges: What Exactly Is Being Challenged? A facial constitutional challenge argues that a law is unconstitutional in itself, while an as-applied constitutional challenge argues that a law is unconstitutional as applied to a particular person or set of circumstances. The distinction is fundamental to constitutional litigation. Read more

Constitutional Challenges: How a Law Is Challenged as Unconstitutional A law is challenged as unconstitutional when a person, organization, or government entity with a proper legal claim asks a court to determine whether the law is consistent with the Constitution. In the United States, this usually happens through an actual Read more

Standing, Justiciability, and Access to Constitutional Courts Standing and justiciability determine whether a constitutional dispute can properly be heard by a court. In the United States, a person cannot ordinarily ask a federal court to decide a constitutional question simply because they believe that government has acted unlawfully. The plaintiff Read more

Constitutional Remedies: What Happens When Government Violates the Constitution? When government violates the Constitution, the legal system can provide several different remedies depending on the nature of the violation, the government actor involved, the right that was violated, and the circumstances of the case. Constitutional remedies can include invalidating or Read more

Constitutional Privacy and the Right to Be Left Alone: Privacy, Liberty, and the Limits of Government Power Constitutional privacy is the principle that government cannot intrude upon certain aspects of an individual’s life without sufficient constitutional justification. Although the U.S. Constitution does not contain a single provision stating “the right Read more