Law Commons^™

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

Political Pressure And Judging In Constitutional Cases, Robert F. Nagel

Publications

No abstract provided.

Progressive And Conservative Constitutionalism, Robin West

Georgetown Law Faculty Publications and Other Works

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …

Reconstructing Section Five Of The Fourteenth Amendment To Assist Impoverished Children, James G. Wilson

Law Faculty Articles and Essays

Liberal lawyers encounter grim alternatives caused by the Supreme Court's relentless shift to the right, particularly if they consider stare decisis a major constitutional value. They can attack specific decisions, demonstrating inconsistencies with prior cases, conclusory reasoning and/ or poor policy. They can use history, jurisprudence or even literature to make broad-based critiques of the Court's increasing callousness. They can propose counter-doctrine which is consistent with existing caselaw. The third response may appear quixotic, even naive, given the present Court. Nevertheless, exploration of progressive alternatives illuminates existing doctrine and provides potential openings if the Court ever decides to become more …

Fourth Amendment Applicability, John O. Sonsteng

Faculty Scholarship

A large percentage of fourth amendment litigation involves the issues of applicability to place, waiver/consent, and the reasonable expectation of privacy. Not one of these issues, however, has the remotest thing to do with the ultimate substance of the fourth amendment protection itself. They deal exclusively with the threshold question of whether the fourth amendment is even involved. Only if it is, do the actual requirements of the fourth amendment become material. This article examines the applicability of the fourth amendment prohibition against unreasonable search and seizures with respect to these common issues.

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …

Indeterminacy And Incommensurability In Constitutional Law, Steven L. Winter

Law Faculty Research Publications

Progressive constitutional scholarship has yet fully to confront the implications of the conservative shift in constitutional law. Liberal critics continue to seek governing constitutional theories with which to constrain decisionmaking by judges of a notably different mind. Other, more radical scholars employ the indeterminacy and "law is politics" critiques in a more open attempt at displacement. Neither approach is viable, however. Each presumes the primacy of the autonomous, self-directing subject; each resists recognition of the situated nature of all human endeavor. This essay adopts the alternative strategy: exploring the implications of situatedness as they apply to the development, practice, and …

Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman

Publications

No abstract provided.

Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins

Publications

No abstract provided.

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer

Journal Articles

My friend Levinson has been prominent of late among constitutional scholars who use religious metaphors to describe the curious American political experiment. In the image he uses, we lawyers are priests in the practice of a constitutional faith; the federal constitution is our scripture, our creed, and our oath. Levinson, though, is not a television evangelist or street preacher. He is, instead, a theologian. He is unique in the honesty and thoroughness he brings to the discussion-as evidenced here by his looking at the possibility that we priests of the American constitutional faith have another faith to take into account …

Abortion Rights (Symposium: The Supreme Court And Local Government Law; The 1989-90 Term), Eileen Kaufman

Scholarly Works

No abstract provided.

Are Courts Competent To Decide Competency Questions? Stripping The Facade From United States V. Charters, Michael L. Perlin

Articles & Chapters

No abstract provided.

Advice, Consent, And Influence, Robert F. Nagel

Publications

No abstract provided.

Developments In Constitutional Law: The 1988-89 Term, A. Wayne Mackay, Dianne Pothier

Articles, Book Chapters, & Popular Press

This article canvasses the major developments from the 1988-89 term of the Supreme Court of Canada.

In terms of Charter jurisprudence there were major developments concerning equality rights, mobility rights, freedom of expression, and section 7.

More generally, there were also important developments in the federal trade and commerce power and broad hints as to the Supreme Court's leanings in relation to the federal spending power. There is clarification on how both federal and provincial laws affect federal undertakings, and re-affirmation of the ancillary nature of powers in relation to language. The Court reassesses the tests of when a provincial …

Barnette And Johnson: A Tale Of Two Opinions, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Among other things, the final two years of the 1980s could well be remembered as a period of patriotic symbols, especially in the area of American constitutional law. During the summer of 1988, debate in the presidential campaign turned to the Pledge of Allegiance to the flag. George Bush criticized Michael Dukakis for vetoing a Massachusetts bill that would have required public school teachers to lead their students in reciting the Pledge of Allegiance. Dukakis defended his action by citing an advisory opinion he had requested from the Supreme Court of Massachusetts which concluded that the bill violated the first …