Law Commons^™

Terminator 2, Robert F. Nagel

Publications

No abstract provided.

War Powers: An Essay On John Hart Ely's War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath, Philip Chase Bobbitt

Faculty Scholarship

I approached John Ely's' new book with the anticipation of delight, qualified by a certain apprehensiveness. Delight because Ely is almost alone among writers in my solemn field in his ability to write with humor; indeed, he writes in a style that reminds me of the marvelous Joseph Heller. There is no reason, I suppose, for constitutional law professors to be incapable of writing amusing and fresh prose or exposing a false syllogism with the light touch of juxtaposition rather than the heavy bludgeon of irony, but how rare this is! More importantly, Ely's arguments have the satisfying feel of …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

Ordinary Sacraments, Emily A. Hartigan

Faculty Articles

Richard Parker is a true force in constitutional thought, and his Populist commitment finds fertile landscape. However, there is something missing from his account of populism—the role of reflection and the fear of God in human affairs. Parker never deals with the fact that “the people” believe in God. Despite the intellectualist drive to separate God from politics, most Americans do not maintain such a wall. Whether under a stultifying separationist doctrine or in a more open pluralism, the people are God-fearing in an increasingly fractured and fascinating way—they are recognizably, fundamentally religious. Parker advocates being in touch with what …

Three Mistakes About Interpretation, Paul Campos

Publications

No abstract provided.

Name-Calling And The Clear Error Rule, Robert F. Nagel

Publications

No abstract provided.

How To Do Things With The First Amendment, Pierre Schlag

Publications

No abstract provided.

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.

Social Justice And Fundamental Law: A Comment On Sager's Constitution, Terrance Sandalow

Articles

Professor Sager begins his very interesting paper by identifying what he considers a puzzling phenomenon: the Constitution, as interpreted by courts, is not coextensive with "political justice." "This moral shortfall," as he refers to it, represents not merely a failure of achievement, but a failure of aspiration: as customarily interpreted, the Constitution does not even address the full range of issues that are the subject of political justice. Sager regards that failure as surprising-so surprising that, in his words, it "begs for explanation."'

Abstract Democracy: A Review Of Ackerman's We The People, Terrance Sandalow

Reviews

We the People: Foundations is an ambitious book, the first of three volumes in which Professor Ackerman proposes to recast conventional understanding of and contemporary debate about American constitutional law. Unfortunately, the book's rhetoricinflated, self-important, and self-congratulatory-impedes the effort to come to terms with its argument. How, for example, does one respond to a book that opens by asking whether the reader will have "the strength" to accept its thesis? Or that announces the author's intention of "engaging" two of the most influential works of intellectual history of the past several decades-and then discusses one in two and one-half pages …

An Interpretivist Agenda, Gary S. Lawson

Faculty Scholarship

As I write these words, bevies of law clerks assigned to cases involving the Bill of Rights are dutifully editing their bench memos for publication in the national reporter system. Once printed, these bench memos will be solemnly treated by lawyers, scholars, other law clerks, and the occasional judge who runs across them as legally significant, or even binding, interpretations of the Constitution. Two features of this burgeoning mass of otherwise unpublishable law review comments bear mention. First, most of them are tedious, tendentious, pretentious, and badly reasoned when reasoned at all, just as one would expect from authors who …

Against Constitutional Theory, Paul Campos

Publications

No abstract provided.

Constitutional Interpretation, Terrance Sandalow

Book Chapters

"[W]e must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding." Marshall meant that the Constitution should be read as a document "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects." Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing …

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …

Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

Rethinking "Original Intent", David B. Lyons

Faculty Scholarship

Although Dred Scott v. Sandford is one of the Supreme Court's most controversial decisions, it is not often taught or read. But its approach to constitutional interpretation is by no means outdated, and its historical importance has not diminished. So it seems a good example to consider.

Raborn V. Davis—Paycheck In Employee’S Possession: A Limitation Of The Current Wage Exemption In Texas, Richard E. Flint

Faculty Articles

Extensions of credit generally help both the debtor and creditor. However, a result of our credit-based economy is that individuals are free to make poor economic decisions, and that they should suffer the consequences of these poor decisions. Although legal rules have had a role in ensuring that debtors are protected from overzealous creditors, commercial transactions can only exist if obligations of debtors are legally enforceable. The role of government, therefore, is to set parameters for procedures to enforce these obligations, while also setting a floor of protected or exempt assets so that debtors will not become wards of the …

Progressive And Conservative Constitutionalism, Robin West

Georgetown Law Faculty Publications and Other Works

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …

Missing Pieces: A Cognitive Approach To Law, Pierre Schlag

Publications

No abstract provided.

Separation Of Powers: Asking A Different Question, Suzanna Sherry

Vanderbilt Law School Faculty Publications

What I find most intriguing about Professor Casper's essay1 is its historical description of the founders' attitude not so much toward "separation of powers," but toward separation of powers "questions." In other words, I am more interested in how the founders approached questions and in the sources of their answers than in the substance of those answers. In comparing Professor Casper's description of the late eighteenth-century approach to separation of powers questions with the predominant way of asking separation of powers questions today, I find that the two are quite different. The difference in approach is equivalent to the difference …

Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates …

Law And Mystery: Calling The Letter To Life Through The Spirit Of The Law Of State Constitutions, Emily A. Hartigan

Faculty Articles

If law is anything today, it is dispirited. It lacks life, vitality, enchantment, and vision. Neither law nor its practitioners sing—or even hum. However, there is something more, already present in America’s state constitutions if practitioners dare turn to hear it. It is the voice of the spirit of the laws of the land. It sings of a vision.

There is a strain of constitutional law, anchored by actual judicial language about the spirit of law, which participates in the discourse identified in two key law review articles—Suzanna Sherry’s “The Founders’ Unwritten Constitution,” and Thomas Grey’s “Origins of the Unwritten …

A Preface To Constitutional Theory, David B. Lyons

Faculty Scholarship

We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …

Comments On Commercial Speech, Constitutionalism, Collective Choice, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

No abstract provided.

The Role Of The Legislative And Executive Branches In Interpreting The Constitution, Robert Nagel

Publications

No abstract provided.

Judicial Criticism, James Boyd White

Book Chapters

Today I shall talk about the criticism of judicial opinions, especially of constitutional opinions. This may at first seem to have rather little to do with our larger topic, "The Constitution and Human Values," but I hope that by the end I will be seen to be talking about that subject too. In fact I hope to show that in what I call our "criticism," our "values" are defined and made actual in most important ways.

I will begin with a double quotation. I recently heard my friend and colleague Alton Becker, who writes about language and culture, begin a …

Rationalism In Constitutional Law, Robert F. Nagel

Publications

No abstract provided.

Fish V. Zapp: The Case Of The Relatively Autonomous Self, Pierre Schlag

Publications

No abstract provided.

Disestablished Religion In Pennsylvania And Kentucky: A Study In Constitutional Interpretation, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.