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Articles 1 - 7 of 7
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Paradoxes Of Constitutional Democracy, Kevin Olson
Paradoxes Of Constitutional Democracy, Kevin Olson
Studio for Law and Culture
Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that a developing constitution needs some standard to guide it towards legitimacy. Without such a standard, constitutional reform will be aimlessly indeterminate. After rejecting proposed solutions to these paradoxes based …
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Faculty Scholarship
LULAC’s treatment of the partisan gerrymandering question, thus, may be as significant for the continuing divisions and uncertainties it reveals as for the result it achieved. A majority of the Court is willing to grapple with the gerrymandering issue but that majority is internally torn over what makes partisan gerrymandering a constitutional problem and when judicial intervention is appropriate. The Court’s difficulty is understandable. Gerrymandering is a challenge to democratic self-government, but judicial intervention requires a judicially manageable theory of democracy compatible with the Constitution and our political institutions. It remains to be seen whether the Court can agree upon …
Home Rule And Local Political Innovation, Richard Briffault
Home Rule And Local Political Innovation, Richard Briffault
Faculty Scholarship
As demonstrated by San Francisco's recent adoption of instant runoff voting and New York City's recent expansion of its program for funding candidates for municipal office, local governments around the country have been actively engaged in examining and revising electoral and governmental processes. These local initiatives include alternative voting systems, campaign finance reforms, conflicts of interest codes, term limits, and revisions to tax, budget and legislative procedures. These local innovations illustrate both the capacity of local governments to restructure basic features of their political organization and their interest in doing so. Local political innovations also test the scope of local …
Constitutional Lessons From Europe, George A. Bermann
Constitutional Lessons From Europe, George A. Bermann
Faculty Scholarship
Given his range of interests, a tribute to Francis Jacobs could appropriately address just about any area of contemporary legal concern. But Francis Jacobs is one whose writings on and off the bench have, for an American, been especially illuminating, due to his unique capacity to translate fundamental issues of European constitutional law into terms that we can grasp. And so, notwithstanding the quantity of writing on the recent constitutional adventure of the European Union ("EU") that has already accumulated, I add yet one more set of reflections on this theme in Francis Jacobs' honor, this time on the possible …
Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg
Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg
Faculty Scholarship
This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques …
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Faculty Scholarship
Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Faculty Scholarship
This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …