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Full-Text Articles in Law

The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin Dec 2008

The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin

Robert Justin Lipkin

Does political theory have an interesting relationship to presidential politics? This Article argues that the public statements of Senator Barack Obama exemplify an anti-foundationalist theory of political dispute resolution. This theory, called “deliberative conversationalism,” attempts to answer the question of how agreement is possible in a republican democracy. The theory’s central features include deliberation, conversation, transformative change, community, and, consensus. These are also elements in Senator Obama’s vision for a new American politics. Understanding the relationship between the theory of deliberative conversationalism and Senator Obama’s public statements provides a window into the mind of a politician who may become the …


What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin Dec 2007

What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin

Robert Justin Lipkin

Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation …


Book Review(Reviewing Arguing Marbury V. Madison (Mark Tushnet Ed., 2005), Robert Lipkin Dec 2005

Book Review(Reviewing Arguing Marbury V. Madison (Mark Tushnet Ed., 2005), Robert Lipkin

Robert Justin Lipkin

No abstract provided.


Going Courting: How Same-Sex Marriage Opponents Came To Love The Courts, Robert Lipkin Sep 2005

Going Courting: How Same-Sex Marriage Opponents Came To Love The Courts, Robert Lipkin

Robert Justin Lipkin

No abstract provided.


Federalism As Balance, Robert Justin Lipkin Dec 2003

Federalism As Balance, Robert Justin Lipkin

Robert Justin Lipkin

Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore …


A Reply To Justice Philip Talmadge, Robert Lipkin Dec 2000

A Reply To Justice Philip Talmadge, Robert Lipkin

Robert Justin Lipkin

No abstract provided.


Indeterminacy, Justification And Truth In Constitutional Theory, Robert Lipkin Dec 1991

Indeterminacy, Justification And Truth In Constitutional Theory, Robert Lipkin

Robert Justin Lipkin

In this Article, Professor Lipkin continues the debate over the nature of indeterminacy in constitutional theory, arguing that epistemic indeterminacy is most relevant to the law, because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy.

Professor Lipkin further argues that the controversy over metaphysical or epistemic indeterminacy is really a controversy over truth or justification as the primary form of validating constitutional rules. In Professor Lipkin's view, the search for constitutional truth should be abandoned or, at best, should be treated as a trivial result of the best justification.

Finally, Professor Lipkin proposes a new …