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Günter Frankenberg's Comparative Constitutional Studies: Between Magic And Deceit, Jud Mathews Jan 2020

Günter Frankenberg's Comparative Constitutional Studies: Between Magic And Deceit, Jud Mathews

Journal Articles

Constitutions traffic in magic and deceit, argues Günter Frankenberg, promising freedom and democracy even as they underwrite the exercise of coercive power on a massive scale. Scholars should approach constitutions with a healthy skepticism, but, Frankenberg contends, most mainstream scholars are too credulous, especially regarding the claims of liberal constitutionalism. Comparative Constitutional Studies serves as his corrective to the perceived blind spots and predilections of mainstream comparative constitutional scholarship, and it gives attention to little-known constitutions, forgotten histories, and alternatives to liberal constitutionalism. It’s a rich, challenging, and valuable book, one that takes the reader to some off the ...


Darkside Discretion In Immigration Cases, Shoba Wadhia Jan 2020

Darkside Discretion In Immigration Cases, Shoba Wadhia

Journal Articles

"Darkside Discretion" refers to a situation where the noncitizen satisfies the statutory criteria set by Congress to be eligible for remedy but is denied by an adjudicator in the exercise of discretion. Imagine a woman who arrived in the United States six months ago who meets her burden of proving she is a refugee based on a fear of persecution by the government in her home country because of her religious beliefs, but who is denied asylum for discretionary reasons. This kind of decision exposes the "darkside" of discretion because it reflects how the government uses the tool of discretion ...


A Future For Paris? Federalism, The Law Of Nations, And U.S. Courts, Jamison E. Colburn Jan 2020

A Future For Paris? Federalism, The Law Of Nations, And U.S. Courts, Jamison E. Colburn

Journal Articles

The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of "dormant" preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also ...


Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai Jan 2020

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Journal Articles

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed ...


Fleshy Encounters: Meddling With Zoo And Aquarium Veterinarians, Irus Braverman Jan 2020

Fleshy Encounters: Meddling With Zoo And Aquarium Veterinarians, Irus Braverman

Journal Articles

This article aims to make visible expert practices that take place behind closed doors and that are perceived as being of no concern to the public, who wouldn’t understand them anyway. The experts that this article is concerned with are medical practitioners of a particular kind: zoo and aquarium veterinarians. I utilize both text and multimedia presentations to allow the veterinarians I interviewed to directly explain their work to the reader, who may then experience this work, the space and environment where it is performed, and the tools with which it is conducted, on a more affective and sensorial ...


Precedent And Discretion, William Baude Jan 2020

Precedent And Discretion, William Baude

Journal Articles

No abstract provided.


Trustee Liability For Breach Of Trust—Loss Or Profit, Or Loss And Profit?, Kenneth F. Joyce Dec 2019

Trustee Liability For Breach Of Trust—Loss Or Profit, Or Loss And Profit?, Kenneth F. Joyce

Journal Articles

No abstract provided.


Derecho Penal Sustantivo, Luis E. Chiesa Aponte Jul 2019

Derecho Penal Sustantivo, Luis E. Chiesa Aponte

Journal Articles

No abstract provided.


Why Didn't The Common Law Follow The Flag?, Christian Burset May 2019

Why Didn't The Common Law Follow The Flag?, Christian Burset

Journal Articles

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British ...


Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel May 2019

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are ...


Civil Servant Disobedience, Jennifer Nou May 2019

Civil Servant Disobedience, Jennifer Nou

Journal Articles

No abstract provided.


Legal Consciousness Reconsidered, Lynette J. Chua, David M. Engel Apr 2019

Legal Consciousness Reconsidered, Lynette J. Chua, David M. Engel

Journal Articles

Legal consciousness is a vibrant research field attracting growing numbers of scholars worldwide. Yet differing assumptions about aims and methods have generated vigorous debate, typically resulting from a failure to recognize that three different clusters of scholars—identified here as the Identity, Hegemony, and Mobilization schools—are pursuing different goals and deploying the concept of legal consciousness in different ways. Scholarship associated with these three schools demonstrates that legal consciousness is actually a flexible paradigm with multiple applications rather than a monolithic approach.Furthermore, a new generation of scholars has energized the field in recent years, focusing on marginalized peoples ...


Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor Apr 2019

Anti-Sanctuary And Immigration Localism, Pratheepan Gulasekaram, Rick Su, Rose Cuison Villazor

Journal Articles

A new front in the war against sanctuary cities has emerged. Until recently, the fight against sanctuary cities has largely focused on the federal government's efforts to defund states like California and cities like Chicago and New York for resisting federal immigration enforcement. Thus far, localities have mainly prevailed against this federal anti-sanctuary campaign, relying on federalism protections afforded by the Tenth Amendment's anticommandeering and anticoercion doctrines. Recently, however, the battle lines have shifted with the proliferation of state-level laws that similarly seek to punish sanctuary cities. States across the country are directly mandating local participation, and courts ...


Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein Apr 2019

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Journal Articles

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in ...


Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara Apr 2019

Patents, Property, And Prospectivity, Jonathan Masur, Adam Mortara

Journal Articles

No abstract provided.


The Living Constitution And Moral Progress: A Comment On Professor Young’S Boden Lecture, David A. Strauss Apr 2019

The Living Constitution And Moral Progress: A Comment On Professor Young’S Boden Lecture, David A. Strauss

Journal Articles

No abstract provided.


Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Strahilevitz Apr 2019

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Strahilevitz

Journal Articles

No abstract provided.


Disparate Impact, Unified Law, Nicholas Stephanopoulos Apr 2019

Disparate Impact, Unified Law, Nicholas Stephanopoulos

Journal Articles

No abstract provided.


Norming In Administrative Law, Jonathan Masur, Eric A. Posner Apr 2019

Norming In Administrative Law, Jonathan Masur, Eric A. Posner

Journal Articles

No abstract provided.


Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier Apr 2019

Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier

Journal Articles

No abstract provided.


Regulatory Bundling, Jennifer Nou, Jed Stiglitz Mar 2019

Regulatory Bundling, Jennifer Nou, Jed Stiglitz

Journal Articles

No abstract provided.


The Impact Of Epic Systems In The Labor And Employment Context, Lise Gelernter Mar 2019

The Impact Of Epic Systems In The Labor And Employment Context, Lise Gelernter

Journal Articles

In Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court ruled that an employer did not violate the National Labor Relations Act (NLRA) when it required employees to agree to arbitrate all claims against the employer and also waive their rights to bring a class or collective action against the employer. The Court reasoned that class or collective actions were not the type of "concerted activities for the purpose of collective bargaining or other mutual aid or protection” that Section 7 of the NLRA protects. This comment, part of a three-part discussion on the impact of ...


A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett Mar 2019

A Framework For The New Personalization Of Law, Anthony Casey, Anthony Niblett

Journal Articles

No abstract provided.


From Catalonia To California: Secession In Constitutional Law, Tom Ginsburg, Mila Versteeg Mar 2019

From Catalonia To California: Secession In Constitutional Law, Tom Ginsburg, Mila Versteeg

Journal Articles

No abstract provided.


Segregation By Citizenship, Emma Kaufman Mar 2019

Segregation By Citizenship, Emma Kaufman

Journal Articles

No abstract provided.


Racial Equity In Algorithmic Criminal Justice, Aziz Huq Mar 2019

Racial Equity In Algorithmic Criminal Justice, Aziz Huq

Journal Articles

No abstract provided.


The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis Feb 2019

The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis

Journal Articles

No abstract provided.


Constitutional Liquidation, William Baude Feb 2019

Constitutional Liquidation, William Baude

Journal Articles

No abstract provided.


The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glowgower, Rebecca Kysar, Darien Shanske Feb 2019

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glowgower, Rebecca Kysar, Darien Shanske

Journal Articles

No abstract provided.


18 U.S.C. § 3553(A)'S Undervalued Sentencing Command: Providing A Federal Criminal Defendant With Rehabilitation, Training, And Treatment In"“The Most Effective Manner", Erica Zunkel Jan 2019

18 U.S.C. § 3553(A)'S Undervalued Sentencing Command: Providing A Federal Criminal Defendant With Rehabilitation, Training, And Treatment In"“The Most Effective Manner", Erica Zunkel

Journal Articles

No abstract provided.