Law Commons^™

The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey

San Diego Law Review

This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension …

Editors’ Foreword, Editors

Fordham Law Review

No abstract provided.

The Gravitational Force Of Originalism, Randy E. Barnett

Fordham Law Review

In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In …

Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames

Fordham Law Review

No abstract provided.

Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell

Fordham Law Review

No abstract provided.

Accepting Contested Meanings, Bernadette Meyler

Fordham Law Review

No abstract provided.

Book Review Of Framed: America's 51 Constitutions And The Crisis Of Governance, By Sanford Levinson, Lawrence Friedman

Journal of Legal Education

No abstract provided.

The Inclusiveness Of The New Originalism, James E. Fleming

Fordham Law Review

No abstract provided.

The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks

Fordham Law Review

The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.

This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …

On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh

Fordham Law Review

No abstract provided.

Originalism, The Why And The What, Larry Alexander

Fordham Law Review

No abstract provided.

Originalism: A Critical Introduction, Keith E. Whittington

Fordham Law Review

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.

Originalism And Constitutional Construction, Lawrence B. Solum

Fordham Law Review

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein

Fordham Law Review

No abstract provided.

The New Originalism And The Foreign Affairs Constitution, Andrew Kent

Fordham Law Review

No abstract provided.

Meaning And Belief In Constitutional Interpretation, Andrei Marmor

Fordham Law Review

No abstract provided.

Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith

Fordham Law Review

No abstract provided.

The New Originalism And The Uses Of History, Jack M. Balkin

Fordham Law Review

Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.

The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.

First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.

Second, although people often associate …

Navigating The Space Between Dueling Sovereigns, Miriam Galston

Touro Law Review

No abstract provided.

Distinguishing The Corporal From The Divine: Legal Fictions Create Bodies Not Souls, Daisy Ayllon

Seventh Circuit Review

Can a for-profit, secular corporation exercise religion? If so, does the Affordable Care Act's requirement that employer-provided health insurance plans offer women of reproductive age contraceptives violate free exercise rights?

Plaintiffs challenging the "contraceptive mandate," as it is commonly known, argue that it violates their rights under the Religious Freedom Restoration Act (RFRA) because it imposes a substantial burden on their religious exercise without meeting strict scrutiny. Although these challenges do present courts with a novel issue (whether a secular, for-profit corporation is a "person" capable of "exercising religion"), the answer to the broader question should be clear: requiring corporate-provided …

Why Turner V. Rogers Was And Wasn’T Correctly Decided: How The Fourteenth Amendment Should Be Read For Child Support Contemnors, Gina Rose Lauterio

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Violating Due Process: The Case For Changing Texas State Trafficking Laws For Minors, Cristina M. Becker

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Young Sex Offender Debacle: The Continued Need For Changes To Juvenile Sex Offender Registry Requirements, Samantha Brewster-Owens

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Led Blindly: One Circuit's Struggle To Faithfully Apply The U.S. Supreme Court's Religious Symbols Constitutional Analysis, William M. Janssen

West Virginia Law Review

No abstract provided.

Book Review Of The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, By Colin Dayan, Dean Spade

Journal of Legal Education

No abstract provided.

Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin

San Diego Law Review

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …

A Long Way From Home: Slow Progress Toward "Home Rule" In South Carolina And A Path To Full Implementation, Pierce T. Maclennan

South Carolina Law Review

No abstract provided.

Expanding Constitutionalism, Gunther Teubner, Anna Beckers

Indiana Journal of Global Legal Studies

Transnational Societal Constitutionalism Symposium, Collegio Carlo Alberto, Turin Italy, May 17-19, 2012