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Articles 1 - 30 of 50
Full-Text Articles in Law
From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West
From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West
Georgetown Law Faculty Publications and Other Works
The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and …
Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee
Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee
Research Collection Yong Pung How School Of Law
The offence of scandalizing the court, a form of contempt of court, is regarded as obsolete in the United Kingdom. However, it continues to be imposed in other Commonwealth nations and remains very much alive in Singapore, having been applied in a crop of cases between 2006 and 2009. This short commentary examines one of these cases, Attorney-General v Hertzberg and others [2009] 1 Singapore Law Reports 1103, which has generated worldwide interest as it arose out of articles published in the Wall Street Journal Asia. In Hertzberg, the High Court of Singapore held that utterances by an alleged contemnor …
The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson
The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson
Faculty Scholarship
The Constitution creates very few federal offices. It creates the House and Senate,1 the Speaker of the House2 and the President pro tempore of the Senate,3 the President,4 the Vice President,5 and the Supreme Court6--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission7 and who Congress may impeach and remove,8 but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power9 and the Vice President's modest voting …
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
Scholarly Works
In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …
The Fog Of Certainty, Robert B. Ahdieh
The Fog Of Certainty, Robert B. Ahdieh
Faculty Scholarship
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Faculty Publications
No abstract provided.
'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker
'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker
All Faculty Scholarship
This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civil rights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's …
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
All Faculty Scholarship
This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear …
The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell
The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell
Faculty Working Papers
In 1789 it was possible to speak of a federation of distinct States joined together for their mutual advantage, but today it is rather the Nation that is divided into subnational units. What caused this shift in focus from the States to the Federal Government? Surely the transformation from a collection of thirteen historically separate States clustered along the Atlantic seaboard to a group of fifty States largely carved out of Federal territory has played a role. Building on previous analysis of the economics of federalism, this essay considers the dynamic effects of increasing the number of states on the …
The "Define And Punish" Clause And The Limit Of Universal Jurisdiction, Eugene Kontorovich
The "Define And Punish" Clause And The Limit Of Universal Jurisdiction, Eugene Kontorovich
Faculty Working Papers
This Article examines whether the "Define and Punish" clause of the Constitution empowers Congress to criminalize foreign conduct unconnected to the United States. Answering this question requires exploring the Constitution's "Piracies and Felonies" provision. While it is hard to believe this can still be said of any constitutional provision, no previous work has examined the scope of the "Piracies and Felonies" powers. Yet the importance of this inquiry is more than academic. Despite its obscurity, the Piracies and Felonies power is the purported Art. I basis for a statute currently in force, which represents Congress's most aggressive use of universal …
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
Faculty Working Papers
In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Law Faculty Publications
No abstract provided.
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Journal Articles
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …
House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson
House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson
Publications
In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Faculty Working Papers
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Faculty Working Papers
This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …
Religious Establishment And Autonomy, Andrew Koppelman
Religious Establishment And Autonomy, Andrew Koppelman
Faculty Working Papers
Kent Greenawalt claims that one rationale for nonestablishment of religion is personal autonomy. If, however, the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), autonomy as such is not what is being protected. The most promising alternative is to understand religion as a distinctive human good that is being protected from government interference.
Federalism At The 'Cathedral': Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Scholarly Publications
As the climate crisis, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But heady plans for energy reform may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule in 1992. The same dry technicality has also threatened the effective management of storm water pollution, contributed to the failed response to Hurricane Katrina, and poses ongoing regulatory obstacles in such critical …
‘The Federalist’ Abroad In The World, Donald L. Horowitz
‘The Federalist’ Abroad In The World, Donald L. Horowitz
Faculty Scholarship
This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …
From Ballots To Bullets: District Of Columbia V. Heller And The New Civil Rights, Anders Walker
From Ballots To Bullets: District Of Columbia V. Heller And The New Civil Rights, Anders Walker
All Faculty Scholarship
This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the …
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Vanderbilt Law School Faculty Publications
In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne
Faculty Scholarship
This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …
Property And Speech In ‘Summum’, Joseph Blocher
Property And Speech In ‘Summum’, Joseph Blocher
Faculty Scholarship
No abstract provided.
The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl
The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl
Law Faculty Articles and Essays
This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …
Presidential Popular Constitutionalism, Jedediah Purdy
Presidential Popular Constitutionalism, Jedediah Purdy
Faculty Scholarship
This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Faculty Scholarship
Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …
It Depends, Gary S. Lawson
It Depends, Gary S. Lawson
Faculty Scholarship
Peter Strauss stated at the outset of this Symposium that the participants were chosen in part for the likelihood that they would generate “intelligent disagreement.” By that standard, I may have been a poor choice--and if that is the case, I will leave it to the reader to determine whether it is a function of the first or second term in the quoted phrase. At first glance, it looks as though I sharply disagree with Rick Pildes and Harold Bruff about whether the PCAOB's members are principal officers who must be appointed by the President with the advice and consent …
Cross-Examining Film, Jessica Silbey
Cross-Examining Film, Jessica Silbey
Faculty Scholarship
The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …
On The Origins Of Originalism, Jamal Greene
On The Origins Of Originalism, Jamal Greene
Faculty Scholarship
For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …
Imagine All The Women: Power, Gender And The Transformative Possibilities Of The South African Constitution, Penelope Andrews
Imagine All The Women: Power, Gender And The Transformative Possibilities Of The South African Constitution, Penelope Andrews
Articles & Chapters
This chapter will explore the South African Constitution, and more particularly, the Bill of Rights, as a vehicle for social and economic transformation. By analyzing the provisions relating to gender equality in South Africa's Constitution, as well as decisions of the Constitutional Court, this chapter will examine whether theconstitutional rights framework in South Africa contains within it the transformative possibilities that will lead to gender equality in all spheres of South African society, and particularly in the economic sphere.