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Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay summarizes and perhaps extends slightly some important recent work, mostly by political scientists, on the structural relation between the array of political power in a nation's nonjudicial branch or branches and the way in which judicial review is exercised in relatively stable democracies. Robert Dahl's classic article identified one such relation. According to Dahl, "[e]xcept for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance." What, though, if there is no "dominant" national political …

Popular Constitutionalism As Political Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article addresses some of the critical reviews of ‘The People Themselves’, focusing on how they respond to the proposition, which I believe to be correct and made in ‘The People Themselves’, that constitutional law is a distinctive or special kind of law. I call that kind of law political law. Both parts of the formulation are equally important. Constitutional law is law, what is sometimes described as "hard" law. As law, it sometimes induces decision-makers to make decisions that are inconsistent with their "pure" preferences, that is, those they would hold in the absence of law. My aim is …

"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. …

When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …

Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in …

Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …

Constitutional Culture Or Ordinary Politics: A Reply To Reva Siegel, Robin West

Georgetown Law Faculty Publications and Other Works

Reva Siegel's lecture, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA,’ explores the interaction between the courts and social movements in creating constitutional meaning. In the primary part of this response I focus my comments on Siegel's three major contributions: First, the historical explanation of the source of the Court's authority in the development of the so-called de facto ERA; second, the articulation of a general, jurisprudential thesis regarding social contestation as a source of constitutional authority apart from text, history, and principle; and third, the quasi-sociological descriptive account of the form social …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Internal Separation Of Powers: Checking Today's Most Dangerous Branch From Within, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial …

Who's Afraid Of Unenumerated Rights?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, the author examines why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, he contends that underlying this …

Constitutions As "Living Trees"? Comparative Constitutional Law And Interpretive Metaphors, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial …

Unitariness And Myopia: The Executive Branch, Legal Process And Torture, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

What promotes legality on the part of government under strain? This Article looks to the role of intra-executive processes in facilitating well-reasoned, legitimate conclusions on questions like the one addressed in this symposium: What are the legal authorities and limits governing coercive interrogation tactics? Admittedly, even the best legal processes are no guarantee of good substantive outcomes. Many critics would disagree with the substance of the executive's August 1, 2002, legal position on coercive interrogation no matter how it was derived. And even were all the best processes faithfully adhered to in developing the government's legal position on torture, it …

Drugs, Dogs And The Fourth Amendment: An Analysis Of Justice Stevens' Opinion In Illinois V. Caballes, James Johnston

James B Johnston

When a drug dealer delivers illegal narcotics to the American maret place, he frequently uses out nation's roads. In an opinion authored by Justice John Paul Stevens, the U.S. Supreme Court that is captioned Illinois v. Caballes, the Court ruloed that drug dealers do not have a reasonable expectation of privacy when delivering illegal drugs in their cars. This article agrees with the Court's ruling and argues that we as a society have a right and an obligatio n to protect ourselves from drug abuse and drug traffickers. Justice Stevens' opinionj provides a brilliant examination of judicial precedent coupled with …

Rehabilitating The "Mystery Passage": An Examination Of The Supreme Court's Anthropology Using The Personalistic Norm Explicit In The Philosophy Of Karol Wojtyla, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Immigration And Evil: The Religious Challenge, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

An Examination Of New Jersey's Money Laundering Statutes, James B. Johnston

James B Johnston

Drug dealers, white collar criminals and organized crime groups look at New Jersey as a safe haven when conducting financial transactions with their crime linked money. Due to its proximity to New York, New Jersey has become susceptible to the money laundering industry. As a result the New Jersey legislature has passed a series of anti-money laundering provisions that provide law enforcement with powerful tools designed to take the profit out of crime and bring money launderers to justice. This article examines New Jersey's money laundering statutes and its potential contribution in bringing profit motivated criminals to justice.

Time For Accountability: Effective Oversight Of Women's Prisons, Debra L. Parkes

Debra L. Parkes

Numerous reports and commissions of inquiry have documented the need for oversight and accountability mechanisms to redress illegalities and rights violations in Canada’s women’s prisons. This paper examines the recent troubled history of women’s imprisonment in which the calls for meaningful accountability and oversight have arisen, outlines some necessary criteria for any effective oversight body within this context, and measures some of the key recommendations against those criteria. The authors conclude that the judicial oversight model and remedial sanction proposed by Justice Louise Arbour in 1996 in her Report of the Commission of Inquiry into Certain Events at the Prison …

An Economic Model Of Fair Use (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A formal model of the law of fair use.

The Meaninglessness Of Delayed Appointments And Discretionary Grants Of Capital Postconviction Counsel, Celestine Richards Mcconville

Celestine Richards McConville

This article addresses the right to postconviction counsel in capital cases - a right that is absolutely crucial to protecting innocent capital inmates from wrongful execution. It is no secret that indigent capital inmates who wish to pursue their state postconviction remedies have no constitutional right to counsel, and instead must rely on statutory grants of counsel. While numerous death penalty states have seen fit to provide a mandatory statutory right to postconviction counsel, a handful of death penalty states, including Alabama, provide only a discretionary right to such counsel. But in Alabama, which at the time of this writing …

The Detainee Cases Of 2004 And 2006 And Their Aftermath, Ronald D. Rotunda

Ronald D. Rotunda

The War on Terror, more than any other war, involves lawyers. For example, they track down terrorist funding, freeze bank funds, and engage in electronic surveillance. Even more significantly, those whom the military has captured are using the U.S. court system to seek release from their detention. While there are a few cases on this issue going back to the Civil War and World War II, the U.S. Supreme Court has issued major rulings on this question in the last few years. The media and those suing the Government claim that these cases have rejected and dealt severe blows to …

The Citizenship Dialectic, Ediberto Roman

Ediberto Roman

Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Erin Ryan

South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …

The Ethnographic Village Law In The Transformation Of The Social(转型社会的乡村法律民族志：方法与对象), Meng Hou

Hou Meng

No abstract provided.

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Robert C Power

Communist’S Post-Modern Power Dilemma: One Step Back, Two Steps Forward, “Soft No” And Hard Choices …, Nicos Trimikliniotis

Nicos Trimikliniotis

This paper considers the challenges ahead after having assessed what determined the outcome of the referendum in April 2004 and the balance of forces as they emerge in the Parliamentary elections of 2006. In spite of the generally sound claims that globalisation shifts decision-making away from nation-states, particularly weak and small states to networks beyond the nation-state, in the case of Cyprus what we have for the first time paradoxically is the “fate” of Cyprus primarily in the hands of Cypriots themselves. Although semi-occupied the two communities can make their decision as to the future of their country and state, …

Immigration To Cyprus, Nicos Trimikliniotis

Nicos Trimikliniotis

This chapter discusses the context that has transformed Cyprus from an emigration to an immigration country. It examines public discourse, the legal status, and the social position of migrants and asylum-seekers. This is exposed against the historical and political backdrop of Cyprus, dominated by the ‘national’ problem, which keeps the island divided.

Unburdening The Constitution: What Has The Indian Constitution Got To Do With Private Universities, Modernity And Nation States?, Shubhankar Dam

Shubhankar Dam

This article critically analyses the decision of the Indian Supreme Court in Yashpal and another v. State of Chhattisgarh and others holding the establishment of private universities as unconstitutional. Swayed by the overwhelmingly irresponsible character of the respondent universities, the Supreme Court innovated constitutional arguments to uphold the claims of the petitioners. While intuitively correct in the context of the immediate facts, the judgment, when analysed in the abstract, reveals the self-inflicted harm it has the potential to cause. The judgment is technologically regressive: it fails to account for the emerging trends in education, especially those related to the use …

El Tribunal Constitucional Ante El Principio De Primacía Del Derecho Comunitario, Germán M. Teruel Lozano

Germán M. Teruel Lozano

THE SPANISH CONSTITUTIONAL COURT BEFORE THE PRIMACY PRINCIPLE OF COMMUNITY LAW: The objective of this study is to analyze and to assess the jurisprudence of the Spanish Constitutional Court about the compatibility of Primacy principle of Community Law with the Spanish Constitution of 1978. The paper pays special attention to the Declaration about the European Constitution (1/2004), that implies a radical change from the previous decisions of the Constitutional Court, especially with respect to the Declaration on the European Union Treaty (132bis/1992). Since the 2004 Declaration, the Constitutional Court admits a possible “displacement” of constitutional rules on behalf of community …

Leyes Orgánico-Constitucionales: Insatisfactoria Rigidización De La Democracia, Fernando Muñoz

Fernando Muñoz

No abstract provided.

A Cultural Turn: Reflections On Recent Historical And Legal Writing On The Second Amendment

William G. Merkel