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Full-Text Articles in Law
Ordered Liberty After Dobbs, Linda C. Mcclain, James E. Fleming
Ordered Liberty After Dobbs, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
This Essay explores the implications of Dobbs v. Jackson Women’s Health Organization for the future of substantive due process (SDP) liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction. We situate Dobbs in the context of prior battles on the Supreme Court over the proper interpretive approach to deciding what basic liberties the Due Process Clause (DPC) protects. As a framing device, we refer to two competing approaches as “the party of [Justice] Harlan or Casey” versus “the party of Glucksberg.” In Dobbs, the dissent co-authored by Justices Breyer, Sotomayor, and Kagan represents the party of …
Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner
Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner
Faculty Scholarship
Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve …
Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai
Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai
Faculty Scholarship
This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …
The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming
The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming
Faculty Scholarship
The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …
Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain
Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain
Faculty Scholarship
This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …
Operation Rescue - Was The Justice Dept. Right To Intervene In Wichita?, Gary S. Lawson, Celeste Lacy Davis, Eve W. Paul
Operation Rescue - Was The Justice Dept. Right To Intervene In Wichita?, Gary S. Lawson, Celeste Lacy Davis, Eve W. Paul
Faculty Scholarship
Discussion of Operation Rescue attempt to shut down abortion clinic in Wichita, KS in August 1991, and ensuing decision of U.S. District Judge Patrick Kelly, as well as intervention of Justice Department. A debate-style article with "pro" side written by Gary Lawson and "con" side written by C.L. Davis & E.W. Paul.