Law Commons^™

Between Description And Prescription: Law, Wittgenstein, And Constitutional Faith, Gregory Brazeal

West Virginia Law Review

The occasions on which ajudge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitutionrequiresthe opposite ofher ideologicalpreferences, are extremely rare. Yetjudges andscholarscontinuetopresenttheirconclusionsastheproduct ofideologicallyneutralreasoning,while often criticizingthe ideologicalbiasin thereasoningoftheiropponents.A Wittgensteinianperspectiveonthenatureof legaldiscoursecanshed lighton thispuzzlinglypersistentstateofaffairs. Legal discourse, includingconstitutionalargument, is partly defined by the blending ofdescriptive reasoningabout what the law is with prescriptivereasoningabout what the law ought to be. To reach a legal conclusion based on a blend of descriptiveandprescriptivereasoning,andtophrasethis conclusion aspurely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them. Taking this conception …

Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam

Maine Law Review

Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville's ideas …

The Collapse Of The New Deal Conceptual Universe: The Schmooze Project, Mark A. Graber

Maryland Law Review

No abstract provided.

Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella

West Virginia Law Review

No abstract provided.

Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin

Akron Law Review

At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for …

Constitutional Law—Why Amending The Consitution To Overrule Citizens United Is The Wrong Way To Fix Campaign Finance In The United States, Zachary Hale

University of Arkansas at Little Rock Law Review

No abstract provided.

Finding Justice, Laurie L. Levenson

ConLawNOW

In this essay memoralizing remarks presented on Constitution Day, Professor Laurie Levenson reflects on her transition from federal prosecutor to defense attorney as founder of Loyola Law School’s Project for the Innocent. She recounts the stories of two clients freed by the work of the Project. She then discusses how this work revealed blind faith in the Constitution is not enough to ensure that only the guilty are convicted. We need to do better. Levenson argues that we need to realize that constitutional rights only protect individuals if both prosecutors and defense lawyers want those rights to work. A prosecutor …

Excessive Lethal Force, Melissa Hamilton

Northwestern University Law Review

This Essay considers the use by Dallas police officers of a robot armed with plastic explosives to kill a suspected gunman on a shooting rampage in 2016. In the wake of Dallas, many legal experts in the news maintained that the police action was constitutional. The commentators' consensus was that as long as the police had the right to use lethal force, then the means of that force is irrelevant. This Essay argues the contrary. Under the current state of the constitutional law on the police use of force on a suspected felon, excessive lethal force is a valid consideration. …

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Vanderbilt Law Review

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec

Pepperdine Law Review

Is the Vice President an executive officer, a legislative officer, or both? This query has existed since the time of the founding. The question poses more difficulty than one might suppose, and it remains unsettled. It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function. Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose? For the first century and a half of …

The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian

Journal of the National Association of Administrative Law Judiciary

While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although Congress …

The House Advantage: How The Professional And Amateur Sports Protection Act Undermines Concepts Of Federalism, And Severely Impacts New Jersey's Gambling-Feuled Economy, Anthony D'Alessandro

Seton Hall Circuit Review

No abstract provided.

The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis

Seton Hall Circuit Review

No abstract provided.

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Vanderbilt Law Review

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today's most …

Dynamic Regulatory Constitutionalism: Taking Legislation Seriously In The Judicial Enforcement Of Economic And Social Rights, Richard Stacey

Notre Dame Journal of Law, Ethics & Public Policy

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts …

Lafler V. Cooper's Remedy: A Weak Response To A Constitutional Violation, Matthew T. Ciulla

Notre Dame Law Review Reflection

The Lafler v. Cooper Court should have chosen the remedy of specific performance of the original plea bargain. The specific performance remedy, long implemented by federal courts in Lafler-like scenarios, and ordered by the district court in Lafler, precisely cures the Lafler injury—the accused regains the ability to accept the original plea offer, except he now has the benefit of effective assistance of counsel. The specific performance remedy, when coupled with the safeguards of the Strickland prongs, poses little risk of abuse, and gives heft to the Sixth Amendment’s guarantee of effective assistance of counsel in the plea …

A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron

Touro Law Review

No abstract provided.

The Supreme Court As Public Educator?, Frederick Schauer

University of Colorado Law Review

No abstract provided.

Justice Brandeis And Railroad Accidents: Fairness, Uniformity And Consistency, Larry Zacharias

Touro Law Review

No abstract provided.

The Continuing Vitality Of Louis D. Brandeis’S Free Expression Jurisprudence, Frederick M. Lawrence

Touro Law Review

No abstract provided.

Privacy And Conformity: Rethinking “The Right Most Valued By Civilized Men”, Susan E. Gallagher

Touro Law Review

No abstract provided.

Returning To Roe: The Renewed Promise Of Whole Woman's Health, Cristina Salcedo

Loyola of Los Angeles Law Review

No abstract provided.

Chilling Rights, Toni M. Massaro

University of Colorado Law Review

A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to judicial review actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice.

This Article proposes a new …