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Articles 1 - 30 of 99
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Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber
Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber
Faculty Scholarship
Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …
Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson
Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson
Michigan Law Review First Impressions
With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions …
Government By Contract And The Structural Constitution, Kimberly L. Wehle
Government By Contract And The Structural Constitution, Kimberly L. Wehle
All Faculty Scholarship
Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept …
A Vanishing Virginia Constitution?, Hon. Stephen R. Mccullough
A Vanishing Virginia Constitution?, Hon. Stephen R. Mccullough
University of Richmond Law Review
No abstract provided.
Developing The Duffy Defect: Identifying Which Government Workers Are Constitutionally Required To Be Appointed, Stacy M. Lindstedt
Developing The Duffy Defect: Identifying Which Government Workers Are Constitutionally Required To Be Appointed, Stacy M. Lindstedt
Missouri Law Review
In 2007, Professor John Duffy wrote a brief article questioning whether administrative patent judges are constitutional officers and therefore subject to the Appointments Clause. A litigant latched onto the argument and challenged the validity of eight years of Board of Patent Appeals and Interferences determinations. Congress enacted a patch to provide for the appointment of patent judges, but the "Duffy Defect" did not stop there. Other scholars have questioned the constitutionality of various government actors from Bankruptcy Judges to the Pay Czar. The United States Tax Court dealt with a recent Appointments Clause challenge when a taxpayer questioned whether Internal …
A Brave New World Of Stop And Frisk, Ronald J. Bacigal
A Brave New World Of Stop And Frisk, Ronald J. Bacigal
Law Faculty Publications
In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …
Stare Decisis And Constitutional Text, Jonathan F. Mitchell
Stare Decisis And Constitutional Text, Jonathan F. Mitchell
Michigan Law Review
Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …
The Constitution And Economic Policy, Alan E. Garfield
The Constitution And Economic Policy, Alan E. Garfield
Alan E Garfield
No abstract provided.
Hermeneutics And Judicial Interpretation, Fernando Armando Ribeiro
Hermeneutics And Judicial Interpretation, Fernando Armando Ribeiro
fernando armando ribeiro
Modern hermeneutics teaches us that everything which is perceived and represented by human beings refers to a process of interpretation, and that the world comes to mind through language. Therefore, Law depends on the hermeneutic mediation. Without hermeneutics there is no law, only normative texts. This paper makes use of the philosophical hermeneutics by Gadamer to investigate the limits and possibilities of judicial interpretation. The paper explores the contribution of philosophical hermeneutics to a new model of rationality and how it can influence the application of Law, and not only legal theory. Therefore, we will examine some of the most …
Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn
Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn
Michigan Journal of Race and Law
With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on …
Baffled By Inactivity: The Individual Mandate And The Commerce Power, John T. Valauri
Baffled By Inactivity: The Individual Mandate And The Commerce Power, John T. Valauri
John T. Valauri
Is there a way to analyze and evaluate the unprecedented individual mandate, consistent with the text of the Constitution and (at least post-1937) relevant Supreme Court decisions, without relying on the novel activity/inactivity distinction advanced by its opponents (to the bafflement of many courts and commentators)? This article argues that there is. It presents a brief against the mandate based upon the original public meaning and doctrinal exposition of words and phrases such as “commerce,” “regulate,” “necessary and proper,” and even “among,” which are in the Constitution and the cases. In doing this, it resists expansive readings of these terms …
Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn
Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn
Richard Daniel Klein
No abstract provided.
The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer
The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer
Thomas A. Schweitzer
No abstract provided.
Aryans, Gender, And American Politics, Robert L. Tsai
Aryans, Gender, And American Politics, Robert L. Tsai
Faculty Scholarship
This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of legal, political, and cultural transformation. In recent years, the community has moved from common law theories of white sovereignty to more robust forms of racial constitutionalism. The piece is drawn from "America's Forgotten Constitutions: Defiant Visions of Power and Community" (forthcoming Harvard University Press, 2014).
Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz
Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Due Process And Fundamental Rights, Martin A. Schwartz
Due Process And Fundamental Rights, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine
Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine
Samuel J. Levine
Charles L. Black Jr. has been one of the most important constitutional scholars in the United States for more than four decades. Professor Black's writings have helped shape the debate in a wide variety of constitutional areas, from racial equality and welfare rights to constitutional amendment, impeachment, and the death penalty. In this essay, Levine briefly surveys a number of Professor Black's articles, focusing on two areas of his scholarship: unnamed human rights and racial justice. By analyzing these two topics, which represent, respectively, Black's most recent scholarship and his most significant early work, Levine attempts to show certain principles …
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Samuel J. Levine
In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Samuel J. Levine
In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …
The Unconstitutionality Of The Filibuster, Josh Chafetz
The Unconstitutionality Of The Filibuster, Josh Chafetz
Cornell Law Faculty Publications
This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.
After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate.
Part III presents a structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" …
A Machine Made Of Words: Our Incompletely Theorized Constitution, Gregory Brazeal
A Machine Made Of Words: Our Incompletely Theorized Constitution, Gregory Brazeal
The University of New Hampshire Law Review
[Excerpt]”Many scholars have observed that the Constitution of the United States can be understood as an example of what Cass Sunstein calls an “incompletely theorized agreement.” The Constitution contains a number of extremely general terms, such as “liberty,” “necessary and proper,” and “due process.” The Framers of the Constitution, it is suggested, did not attempt to specify precisely how each of these principles would operate in every case. On this view, the Constitution is incompletely theorized in the sense of representing “a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.” For example, …
Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield
Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield
Alan E Garfield
No abstract provided.
Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer
Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer
Thomas A. Schweitzer
No abstract provided.
Extracting Lessons From Illinois’ 2010 Special Election Fiasco: A Closer Look At The Seventh Circuit’S Decision In Judge V. Quinn And The Special Election Requirement Of The Seventeenth Amendment, Furqan Mohammed
Furqan Mohammed
This Note discusses the recent Seventh Circuit decision in Judge v. Quinn, in which the Seventh Circuit unanimously set aside Illinois’ Election Code under the Seventeenth Amendment because of the manner in which they filled vacant seats for U.S. Senator. This issue arose when then-Senator Barack Obama resigned from the Senate in November, 2008, to become President. When he resigned, Roland Burris was appointed to fill the seat. Illinois was not planning to hold a special election to fill Obama's seat because under Illinois Election Code, a special election to fill a vacant senate seat could only occur with the …
F10rs Sgb No. 1 (Election Code), Bonvillain, Alexander, Elmore, B Jones, D Jones, Lemoine, Vaughn, Wells
F10rs Sgb No. 1 (Election Code), Bonvillain, Alexander, Elmore, B Jones, D Jones, Lemoine, Vaughn, Wells
Student Senate Enrolled Legislation
No abstract provided.
F10rs Sgb No. 6 (Ccc), Landry, Terracciano, Eveland
F10rs Sgb No. 6 (Ccc), Landry, Terracciano, Eveland
Student Senate Enrolled Legislation
No abstract provided.
Awakening The Press Clause, Sonja R. West
Awakening The Press Clause, Sonja R. West
Scholarly Works
The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.
The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press, …
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
Michigan Law Review
Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …
Same Sex Marriage: Does The Constitution Or State Constitution Support Same-Sex Marriages?, Sonja Seehusen
Same Sex Marriage: Does The Constitution Or State Constitution Support Same-Sex Marriages?, Sonja Seehusen
University of the District of Columbia Law Review
No abstract provided.