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The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …

Rationalizing The Abortion Debate: Legal Rhetoric And The Abortion Controversy, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

State Sovereignty And Federal Court Power: The Eleventh Amendment After Pennhurst V. Halderman, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Erwin Chemerinsky

None available.

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

False Speech And The First Amendment, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Amending The Constitution, Erwen Chemerinsky

Erwin Chemerinsky

The ultimate measure of a constitution is how it balances entrenchment and change. On the one hand, a constitution differs from all other laws in that it is much more difficult to revise. For example, the next session of Congress can amend or repeal a statute, but altering the U.S. Constitution requires a complex process involving supermajorities of both houses of Congress and the states. A constitution thus reflects a desire to place a society's core values of governance - such as the structure of government and the rights of individuals - in a document that is hard to revise. …

In Defense Of Judicial Supremacy, Erwin Chemerinsky

Erwin Chemerinsky

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …

Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Unpleasant Speech On Campus, Even Hate Speech, Is A First Amendment Issue, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Why Church And State Should Be Separate, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The State-Created Danger Doctrine, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Rehnquist Court & Justice: An Oxymoron?, Erwin Chemerinsky

Erwin Chemerinsky

From the perspective of public interest law, the Rehnquist Court, simply put, is a disaster.

The Roberts Court And Freedom Of Speech, Erwin Chemerinsky

Erwin Chemerinsky

This is an edited version of a speech delivered on December 16, 2010 in Washington, D.C., as part of the Federal Communications Bar Association's Distinguished Speaker Series. This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA's Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court's position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its …

The Second Amendment And Gun Control, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Religious Freedom Restoration Act Is A Constitutional Expansion Of Rights, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

Erwin Chemerinsky

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

The Assumptions Of Federalism, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky

Erwin Chemerinsky

The Bush administration has made unprecedented claims of unchecked executive power. The Constitution reflects a simple model that two branches of government should have to be involved in virtually all major government actions. The Bush administration, however, has claimed the ability to detain individuals, to engage in electronic eavesdropping, and to authorize torture even in violation of federal statutes. The solution must be for courts to reject these broad claims of presidential authority.

The Elusive Quest For Value Neutral Judging: A Response To Redish And Arnould, Erwin Chemerinsky

Erwin Chemerinsky

In October 2012, the United States Supreme Court heard oral arguments in Fisher v. University of Texas at Austin and again faced the question of whether colleges and universities can consider race as a factor in admissions decisions to benefit minorities and enhance diversity. As was true when the Court last considered this issue in Grutter v. Bollinger in 2003, the central question for the Justices was whether colleges and universities have a compelling interest in having a diverse student body. As I read the paper by Martin Redish and Mathew Arnould, I wondered how they would have the Court …

The Expressive Interest Of Associations, Erwin Chemerinsky, Catherine Fisk

Erwin Chemerinsky

Professors Erwin Chemerinsky and Catherine Fisk take issue on several grounds with Boy Scouts of America v. Dale, in which the Supreme Court held that the Boy Scouts have a First Amendment right to exclude gays, even though state law prohibits such discrimination. They first criticize Dale 's holding that courts must accept the group leadership's characterization of the group's expressive message. The Court's approach short-circuited the process by which an organization ordinarily develops or transforms its expressive message--internal deliberation, public articulation of a message, and recruitment of like-minded members-and it did so at the expense of many current and …

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Supreme Court 2000-2001 Term: First Amendment Cases, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Rediscovering Brandeis’S Right To Privacy, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Real Discrimination?, Erwin Chemerinsky

Erwin Chemerinsky

Part I of this Essay examines Hibbs and criticizes the distinction that it draws in allowing Congress much greater authority to act under Section 5 for some types of discrimination than for others. Part II explains the Court’s error by focusing on a specific example: the authority to sue states under Title II of the Americans with Disabilities Act for discrimination against people with disabilities in government programs, services, and activities. Under the reasoning in Hibbs, Congress does not have the same authority to authorize suits against disability discrimination as it does for gender discrimination. This is fundamentally misguided, as …

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.