期刊名称：Utah OnLaw: The Utah Law Review Online Supplement
出版年度：2013
卷号：2013
期号：1
语种：English
出版社：Faculty of Education
摘要：This brief essay responds to Brannon P. Denning & Michael B.Kent, Anti-Evasion Doctrines in Constitutional Law, 2012 UTAH L. REV. 1773. I assess Denning and Kent’s contribution to the growing metadoctrinal strand of constitutional theory and their contention that Anti-Evasion Doctrines—doctrinal rules, tests, and standards that help courts implement constitutional norms in concrete cases by patching up gaps in previously announced implementing doctrines—are a conceptually distinct category of constitutional decision rule. While I conclude that this claim is questionable, I also argue that Denning and Kent’s contribution to metadoctrinal theory is nevertheless significant: They identify a previously understudied set of reasons that bear on theprocess of doctrinal formulation. These anticircumventionconsiderations—considerations of the extent to which existingconstitutional doctrines fail to capture some set of constitutionalviolations—are relevant in a broad array of doctrinal contexts andunderstanding them adds to our general account of how courts formulate constitutional doctrine.
