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Special Justifications, Randy J. Kozel Oct 2018

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the ...


The Death Penalty As Incapacitation, Marah S. Mcleod Jan 2018

The Death Penalty As Incapacitation, Marah S. Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators ...


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


Precedent And Speech, Randy J. Kozel Feb 2017

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within ...


Original Meaning And The Precedent Fallback, Randy J. Kozel Jan 2015

Original Meaning And The Precedent Fallback, Randy J. Kozel

Journal Articles

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield to contrary precedent.

This Article considers the role of judicial precedent not when it conflicts with the Constitution’s original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional ...


Second Thoughts About The First Amendment, Randy J. Kozel Jan 2014

Second Thoughts About The First Amendment, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article contends ...


Institutional Autonomy And Constitutional Structure, Randy J. Kozel Jan 2014

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Journal Articles

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's ...


Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel Jan 2012

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

Journal Articles

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that ...


The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett Jan 2011

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Journal Articles

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our ...


Judicial Review, Local Values, And Pluralism, Richard W. Garnett Jan 2009

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and ...


William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett Jan 2006

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took ...


Religion, Division, And The First Amendment, Richard W. Garnett Jan 2006

Religion, Division, And The First Amendment, Richard W. Garnett

Journal Articles

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that ...


In Search Of A Theory For Constitutional Comparativism, Roger P. Alford Jan 2005

In Search Of A Theory For Constitutional Comparativism, Roger P. Alford

Journal Articles

Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This theoretical approach ...


Misusing International Sources To Interpret The Constituion, Roger P. Alford Jan 2004

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our Constitution unless ...


Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett Jan 2004

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if ...


Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar Jan 2002

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to ...


Executive Power In Youngstown's Shadows, Patricia L. Bellia Jan 2002

Executive Power In Youngstown's Shadows, Patricia L. Bellia

Journal Articles

Fifty years after it was handed down, the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer is among the most important of the Court's separation of powers cases. This Article explores two quite different legacies of the Youngstown case. First, Youngstown has a symbolic or rhetorical power, in that it stands as an example of a court invalidating the actions of a coordinate branch of government in a politically delicate context. When a court wields this weapon, it can take some cover in Youngstown's shadows, and the possibility of a court exercising this power disciplines ...


Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman Jan 2000

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly ...


Kann Das Deutsche Verfassungsrechtsdenken Vorbild Fur Die Vereinigten Staaten Sein?, Donald P. Kommers Jan 1998

Kann Das Deutsche Verfassungsrechtsdenken Vorbild Fur Die Vereinigten Staaten Sein?, Donald P. Kommers

Journal Articles

Mein Thema läßt sich am besten als Frage formulieren: Was können wir Amerikaner von der Erfahrung der Deutschen mit dem Grundgesetz lernen? Diese Frage wurde für gewöhnlich in der anderen Richtung gestellt, näm lich: Was haben die Deutschen vom amerikanischen Verfassungsrecht ge lernt oder was sollten sie von ihm lernen?


Direct Democracy And Hastily Enacted Statutes, John C. Nagle Jan 1996

Direct Democracy And Hastily Enacted Statutes, John C. Nagle

Journal Articles

No abstract provided.


On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer Jan 1990

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

Journal Articles

No abstract provided.


Constitutional Law - Moore V. U.S. House Of Representatives: A Possible Expansion Of Congressmen's Standing To Sue, David T. Link, Jeffrey L. Elverman, Thomas E. Lange Jan 1985

Constitutional Law - Moore V. U.S. House Of Representatives: A Possible Expansion Of Congressmen's Standing To Sue, David T. Link, Jeffrey L. Elverman, Thomas E. Lange

Journal Articles

In Moore v. U.S. House of Representatives,I the United States Court of Appeals for the District of Columbia Circuit addressed the question of whether individual congressmen have standing to sue the Congress. In Moore, members of the House of Representatives sought declaratory relief to invalidate the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA).2 The congressmen contended that TEFRA originated in the Senate in violation of the origination clause of the United States Constitution, 3 which requires that bills for raising revenue originate in the House of Representatives. Although the District of Columbia Circuit ultimately denied ...


Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers Jan 1985

Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers

Journal Articles

In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany's highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the ...


The Responsibilities Of The United Kingdom Parliament And Government Under The Australian Constitution, John M. Finnis Jan 1983

The Responsibilities Of The United Kingdom Parliament And Government Under The Australian Constitution, John M. Finnis

Journal Articles

Arguing that the United Kingdom retained constitutioanl duties to Australia following that country's independence.


Comparative Constitutional Law: Casebooks For A Developing Discipline, Donald P. Kommers Jan 1982

Comparative Constitutional Law: Casebooks For A Developing Discipline, Donald P. Kommers

Journal Articles

Comparative constitutional law is a developing area of legal scholarship. One sign of this development is the recent appearance of two casebooks, both published in 1979. Comparative Constitutional Law: Cases and Materials by Mauro Cappelletti and William Cohen, focuses primarily on the procedural rights of defendants from the United States and nine European jurisdictions. Comparative Constitutional Law. Cases and Commentaries by Walter F. Murphy and Joseph Tanenhaus, examines the constitutional interpretation of a large number of substantive issues in six contemporary constitutional democracies. Reviewing the two books together provides an opportunity not only to compare them as teaching tools but ...


The Jurisprudence Of Free Speech In The United States And The Federal Republic Of Germany, Donald P. Kommers Jan 1980

The Jurisprudence Of Free Speech In The United States And The Federal Republic Of Germany, Donald P. Kommers

Journal Articles

This Article compares the constitutional thought of the United States Supreme Court and the West German Federal Constitutional Court in the area of free speech. The primary focus is on cases dealing with governmental restraints on speech arising out of concern for internal security' and commentary affecting the reputation of public figures. These cases reflect major lines of German and American free speech thought. The objective of this Article is to compare the concepts of free speech that have evolved in the opinions of the two tribunals and to consider the significance of the separate doctrinal paths taken by each ...


Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple Jan 1979

Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple

Journal Articles

Zweck der folgenden Ausführungen ist die Darlegung der Bedeutung außergesetz licher Urteilsmaßstäbe in der amerikanischen Verfassungsrechtsprechung. Dabei sollen vor allem diejenigen Urteilskriterien untersucht werden, die den größten Einfluß auf das amerikanische Verfassungsrecht haben dürften; sie sollen im Kontext des gegen wärtigen case law untersucht werden.


Judicial Review: Its Influence Abroad, Donald P. Kommers Jan 1976

Judicial Review: Its Influence Abroad, Donald P. Kommers

Journal Articles

The doctrine of judicial review, having been nourished in a legal culture and socio-political environment favorable to its growth, is America’s most distinctive contribution to constitutional government. Judicial review as historically practiced in the United States was duly recorded abroad, with varying degrees of influence and acceptability. During the nineteenth and early twentieth centuries, the influence of judicial review was most conspicuous in Latin America, where it was adopted as an articulate principle of numerous national constitutions, while most European nations consciously rejected it as incompatible with the prevailing theory of separation of powers. Germany, Austria, and Switzerland, although ...


The Value Of Comparative Constitutional Law, Donald P. Kommers Jan 1976

The Value Of Comparative Constitutional Law, Donald P. Kommers

Journal Articles

The publication of an English translation of a notable decision by a major foreign tribunal' is a fitting occasion on which to discuss the value of comparative constitutional law as a subject of academic study and as a legal discipline of valid current applicability. When referring to comparative constitutional law, I am speaking mainly of case law and most particularly of judicial decisions handed down by national tribunals empowered to review the constitutionality of legislative and executive acts.


Comparative Judicial Review And Constitutional Politics, Donald P. Kommers Jan 1975

Comparative Judicial Review And Constitutional Politics, Donald P. Kommers

Journal Articles

Donald P. Kommers reviews Richard D. Baker's Judicial Review in Mexico: A Study of the Amparo Suit (Austin and London: University of Texas Press, 1971); B. L. Strayer's Judicial Review of Legislation in Canada (Toronto: University of Toronto Press, 1968); Heinz Laufer's Verfassungsgerichtsbarkeit und politischer Prozess (Tiibingen: J.C.B. Mohr [Paul Siebeck ], 1968); Mauro Cappelletti's Judicial Review in the Contemporary World (Indianapolis: The Bobbs-Merrill Company, Inc., 1971); Edward McWhinney's Judicial Review (4th ed.) (Toronto: University of Toronto Press, 1969); Richard E. Johnston's The Effect of Judicial Review on Federal-State Relations in Australia, Canada ...