期刊名称：Utah OnLaw: The Utah Law Review Online Supplement
出版年度：2014
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 the process of doctrinal formulation. These anticircumvention considerations—considerations of the extent to which existing constitutional doctrines fail to capture some set of constitutional violations—are relevant in a broad array of doctrinal contexts and understanding them adds to our general account of how courts formulate constitutional doctrine.
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