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Articles 1 - 30 of 48
Full-Text Articles in Law
Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler
Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler
Faculty Scholarship
This Article employs the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.
In this Article, …
Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum
Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.
These cases raise important questions about …
Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman
Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman
Life of the Law School (1993- )
No abstract provided.
The Court And The Private Plaintiff, Elizabeth Beske
The Court And The Private Plaintiff, Elizabeth Beske
Articles in Law Reviews & Other Academic Journals
Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …
Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams
Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams
Honors Theses
Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.
The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …
2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law
2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Pursuing Gender Equality Through The Courts: The Role Of South Africa’S Women Judges, Penelope Andrews
Pursuing Gender Equality Through The Courts: The Role Of South Africa’S Women Judges, Penelope Andrews
Articles & Chapters
This chapter will focus on the contribution of female judges to the transformation of the judiciary in South Africa and specifically the pursuit of gender equality. It is a limited project that will explore the impacts of women judges on constitutional jurisprudence and how the influence of women judges has interacted with the broader transformation of the judicial and political system in South Africa after apartheid. In examining the impact of women judges on constitutional jurisprudence with respect to gender equality, I explore whether women judges have, in their judgments, conscripted and interpreted the constitution to highlight and guarantee its …
Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden
Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo
An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo
Senior Honors Theses
This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …
Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey
Rwu Law News: The Newsletter Of Roger Williams University School Of Law 12-2020, Barry Bridges, Michael M. Bowden, Nicole Dyszlewski, Louisa Fredey
Life of the Law School (1993- )
No abstract provided.
Law School News: Rwu Law Professors Win Release For Two Immigrants At Risk For Covid-19 04-24-2020, Roger Williams University School Of Law
Law School News: Rwu Law Professors Win Release For Two Immigrants At Risk For Covid-19 04-24-2020, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Vertical Stare Decisis And Three-Judge District Courts, Michael T. Morley
Vertical Stare Decisis And Three-Judge District Courts, Michael T. Morley
Scholarly Publications
Three-judge federal district courts have jurisdiction over many issues central to our democratic system, including constitutional challenges to congressional and legislative districts, as well as to certain federal campaign-finance statutes. They are similarly responsible for enforcing key provisions of the Voting Rights Act. Litigants often have the right to appeal their rulings directly to the U.S. Supreme Court. Because of this unusual appellate process, courts and commentators disagree on whether such three-judge district court panels are bound by circuit precedent or instead are free to adjudicate these critical issues constrained only by U.S. Supreme Court rulings.
The applicability of court …
The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke
The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke
Calvert Undergraduate Research Awards
Advanced Research Winner 2019:
While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20th century when this concept transitioned from an economic and property rights based approach to one …
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Faculty Scholarship
This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …
The Most Revealing Word In The United States Report, Richard Primus
The Most Revealing Word In The United States Report, Richard Primus
Articles
The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …
Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden
Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman
The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.
But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".
Part I of this article quarrels with the Chief Justice's assertion that the …
Constitutional Forbearance, A. Christopher Bryant
Constitutional Forbearance, A. Christopher Bryant
Faculty Articles and Other Publications
This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases …
Constitutional Expectations, Richard A. Primus
Constitutional Expectations, Richard A. Primus
Articles
The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …
Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
A Different Take On The Roberts Court: The Court As An Institution, Ideology, And The Settled Nature Of American Constitutional Law, Robert A. Sedler
A Different Take On The Roberts Court: The Court As An Institution, Ideology, And The Settled Nature Of American Constitutional Law, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Judicial Power And Mobilizable History, Richard A. Primus
Judicial Power And Mobilizable History, Richard A. Primus
Articles
One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …
Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells
Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells
Faculty Publications
One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal …
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Assessing The New Judicial Minimalism, Christopher J. Peters
Assessing The New Judicial Minimalism, Christopher J. Peters
All Faculty Scholarship
In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Articles
In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …