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The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …

Rationalizing The Abortion Debate: Legal Rhetoric And The Abortion Controversy, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

State Sovereignty And Federal Court Power: The Eleventh Amendment After Pennhurst V. Halderman, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Keynote Address: The Alaska Constitution And The Future Of Individual Rights, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Prosecutorial Immunity, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Justice O'Connor And Federalism, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Making Sense Of Apprendi And Its Progeny, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Human Rights And Liberties: 50 Years After Brown V. Board Of Education - Keynote Speakers, Mark Rosenbaum, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Symposium On State Court Funding: Keynote Address, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Substantive Due Process, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Supreme Court And Public Schools, Erwin Chemerinsky

Erwin Chemerinsky

Review of Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

State Constitutions As The Future For Civil Rights, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Constitution Is Not "Hard Law": The Bork Rejection And The Future Of Constitutional Jurisprudence., Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

False Speech And The First Amendment, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

History, Tradition, The Supreme Court, And The First Amendment, Erwin Chemerinsky

Erwin Chemerinsky

In the last decade, the Supreme Court increasingly has declared that constitutional interpretation should be controlled by tradition and history. Most importantly, the Court has ruled that rights should not be judicially protected under the Constitution unless there is a tradition of protection. Professor Chemerinsky describes this trend and accounts for its origins. He then argues that this heavy emphasis on history and tradition in constitutional interpretation fails to provide the desired constraint on judicial discretion and is undesirable as a method of analysis.

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Erwin Chemerinsky

None available.

Losing Faith: The Supreme Court And The Abandonment Of The Adjudicatory Process, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky

Erwin Chemerinsky

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

False Speech And The First Amendment, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Justice Kennedy: A Free Speech Justice? Only Sometimes, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Tobriner Memorial Lecture: Free Speech On Campus, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Amending The Constitution, Erwen Chemerinsky

Erwin Chemerinsky

The ultimate measure of a constitution is how it balances entrenchment and change. On the one hand, a constitution differs from all other laws in that it is much more difficult to revise. For example, the next session of Congress can amend or repeal a statute, but altering the U.S. Constitution requires a complex process involving supermajorities of both houses of Congress and the states. A constitution thus reflects a desire to place a society's core values of governance - such as the structure of government and the rights of individuals - in a document that is hard to revise. …

Trump, The Court, And Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The HazelwoodIng Of The First Amendment: The Deference To Authority, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Reporter's Draft For The Working Group On Principles To Use When Considering The Federalization Of Civil Law, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

In Defense Of Judicial Supremacy, Erwin Chemerinsky

Erwin Chemerinsky

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …

Protect The Press: A First Amendment Standard For Safeguarding Aggressive Newsgathering, Erwin Chemerinsky

Erwin Chemerinsky

Few occu.pations or professions rank lower than reporters in public esteem. In July 1999, Justice Stephen Breyer participated as a panelist at the Ninth Circuit Judicial Conference and was challenged by Associated Press reporter Linda Deutsch about the absence of cameras in the Supreme Court. Justice Breyer explained that the Court did not want to risk its relatively high level of public esteem by placing itself on television. Justice Breyer noted the lack of respect for the media and said that the Court did not want to see its esteem ratings lowered to that of the press.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Mario L. Barnes, Erwin Chemerinsky, Angela Onwuachi-Willig

Erwin Chemerinsky

No abstract provided.