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Constitutional Mobilization, Bui Ngoc Son Jan 2018

Constitutional Mobilization, Bui Ngoc Son

Washington University Global Studies Law Review

People around the world are mobilizing for constitutional change. This global phenomenon has been underexplored in comparative constitutional studies. This Article introduces the concept of constitutional mobilization, theorizes about it, and offers an original, empirical case-study.

First, it develops a general theoretical framework defined by the following key concepts. Constitutional mobilization is the process by which social actors employ constitutional norms and discourses to advocate for constitutional change. Constitutional opportunity refers to the general political and constitutional environment in which constitutional mobilization operates, and particular political and constitutional processes that provoke constitutional mobilization. Constitutional framing concerns identifying constitutional problems and ...


Evolved Standards, Evolving Justices? The Case For A Broader Application Of The Eighth Amendment, William W. Berry Iii Jan 2018

Evolved Standards, Evolving Justices? The Case For A Broader Application Of The Eighth Amendment, William W. Berry Iii

Washington University Law Review

In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices.

The Court’s evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court’s applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments.

Given the lack of justification for judicial restraint under the Eighth ...


The Contours Of Constitutional Approval, Nicholas O. Stephanopoulos, Mila Versteeg Jan 2016

The Contours Of Constitutional Approval, Nicholas O. Stephanopoulos, Mila Versteeg

Washington University Law Review

Scholars and judges agree on the importance of constitutional approval—that is, people’s subjective support for their constitution. The Supreme Court has asserted that it owes its very legitimacy to popular backing for its decisions. Academic luminaries have concurred, while also connecting constitutional approval to constitutional compliance and durability, as well as the easing of the countermajoritarian difficulty.

Until now, though, no information has been available on either the levels or the causes of constitutional support. In this Article, we rectify this shortcoming by presenting the results of a nationally representative survey that we conducted in late 2014. The ...


The Alien Tort Statute From The Perspective Of Federal Court Procedure, John N. Drobak Jan 2014

The Alien Tort Statute From The Perspective Of Federal Court Procedure, John N. Drobak

Washington University Global Studies Law Review

"This Article will examine a number of procedural issues relevant to the Alien Tort Statute, focusing on what the Supreme Court has resolved and what remains open for future litigation. It will analyze the constitutional basis for the Statute and explain how the law of nations, as part of federal common law, established the decision rules for ATS litigation. Then it will examine the meaning of the territoriality limitation imposed by Kiobel in the context of the Court’s established practice of interpreting jurisdictional statutes narrowly. After looking at the relevance of recent changes in personal jurisdiction law for ATS ...


Reconstructing Constitutional Punishment, Paulo Barrozo Jan 2014

Reconstructing Constitutional Punishment, Paulo Barrozo

Washington University Jurisprudence Review

Constitutional orders punish—and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories ...


Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser Jan 2014

Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser

Washington University Jurisprudence Review

No abstract provided.


The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall Jan 2014

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Washington University Law Review

No abstract provided.


Religious Associations: Hosanna-Tabor And The Instrumental Value Of Religious Groups, Ashutosh Bhagwat Jan 2014

Religious Associations: Hosanna-Tabor And The Instrumental Value Of Religious Groups, Ashutosh Bhagwat

Washington University Law Review

In its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a “ministerial exception” to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government’s argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was “untenable,” and indeed “remarkable,” because the very existence ...


How Nfib V. Sebelius Affects The
 Constitutional Gestalt, Lawrence B. Solum Jan 2013

How Nfib V. Sebelius Affects The
 Constitutional Gestalt, Lawrence B. Solum

Washington University Law Review

This Essay examines the effects of the Supreme Court‘s decision in National Federation of Independent Business v. Sebelius, in which the Court addressed the constitutionality of the Affordable Care Act. More precisely, what effects will NFIB have on the law—especially constitutional law? We can divide these effects into two general categories, direct and indirect. "Direct legal effects" are those created by and through legal norms. They include the operation of legal orders (the mandate in an appellate opinion) and legal rules (stare decisis and the doctrine of law of the case). "Indirect legal effects" are mediated by causal ...


Judicial Intervention In Kenya's Constitutional Review Process, Laurence Juma, Chuks Okpaluba Jan 2012

Judicial Intervention In Kenya's Constitutional Review Process, Laurence Juma, Chuks Okpaluba

Washington University Global Studies Law Review

The constitutional reform process in Kenya, which culminated in the promulgation of a new constitution in August 2010, has been a subject of much study and scholarly deliberation. That it ended on a rather positive note as compared to those in Zambia, Malawi, and even Zimbabwe, is seen by many as proof that Africans could, after all, redesign their constitutional frameworks to weed out moribund structures and entrenche systems of democratic governance. But the Kenyan experience also indicates a rather unfortunate trend where constitutions are never allowed to grow or mature with statehood. Instead, they are replaced whenever a new ...