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Articles 1 - 7 of 7
Full-Text Articles in Law
Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson
Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson
Faculty Scholarship
Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …
Irreducible Constitution, The 1996 Jcli Religion Symposium, Abner S. Greene
Irreducible Constitution, The 1996 Jcli Religion Symposium, Abner S. Greene
Faculty Scholarship
No matter how hard they try, some constitutional theorists can't avoid being, at bottom, either democratic-foundationalists ("democrats") or rights-foundationalists. In the first part of this essay, I will offer a third way, insisting that at the heart of the American constitutional order is an irreconcilable conflict between these divergent accounts, that attempts to predicate constitutionalism on either democracy or rights cannot succeed. Our constitution (a term I will use to mean our constitutional order--text plus ... ) is, at the core, coreless. It cannot be resolved to a master predicate. It cannot be reduced to democracy or to rights. It …
Democracy And Feminism , Tracy E. Higgins
Democracy And Feminism , Tracy E. Higgins
Faculty Scholarship
Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …
The Judicial System & Equality In Schooling, Frank J. Macciarola, Dorothy Kerzner Lipsky, Alan Gartner
The Judicial System & Equality In Schooling, Frank J. Macciarola, Dorothy Kerzner Lipsky, Alan Gartner
Fordham Urban Law Journal
This Article examines how the concept of equality has played out in the efforts of the courts to define student rights in several important areas. These include school prayer and flag salutation, racial discrimination and cases concerning students with learning disabilities. The Article examines how differences in these areas are first conceptualized and then addressed by the courts. This Article discusses good school practices and addresses the educational methods which have been proven to be effective. The common thread in effective educational doctrine is that programs which integrate and include students are often the most effective education method on many …
Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon
Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon
Fordham Urban Law Journal
This Article examines the conflict between preserving local autonomy and remedying constitutional violations in the context of school desegregation. It articulates the problem by exploring the role of the city and its part in institutional reform. It examines what is meant by local autonomy and institutional reform in the context of the ongoing struggle in Kansas City, Missouri. It examines how the Supreme Court has viewed the relationship between the remedial powers of district courts and municipal autonomy of local governments. Finally, it argues for a more coherent system of balancing judicial involvement and local government autonomy in fashioning remedial …
Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson
Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson
Faculty Scholarship
Part I of this Note explains why the present system does not allow individuals to recover damages against the federal government for violations of the Constitution. It first describes the doctrine of constitutional torts and its limitations. It then discusses sovereign immunity, and explains that Congress has retained sovereign immunity for constitutional torts. It concludes with a discussion of the Supreme Court's policy arguments for not creating a cause of action against the government for constitutional violations. Part II explores the Human Radiation Experiments as a case study in the remedial gaps created by the current scope of Bivens and …
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Faculty Scholarship
A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …