Law Commons^™

Restoring The Right Constitution?, Eduardo M. Peñalver

Cornell Law Faculty Publications

After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In "Restoring the Lost Constitution," Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of …

The Constitution's Political Deficit, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative …

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …

Towards A Common Law Originalism, Bernadette Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested …

Kelo's Moral Failure, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier

Faculty Scholarship

Responding to a confused patchwork of trial courts with overlapping jurisdiction, uneven justice around the state, and a growing backlog of appellate cases, voters in Kentucky went to the polls on November 4, 1975, to approve a sweeping constitutional amendment that radically revised Kentucky’s court system. Although reformers had decried Kentucky’s confusing court system since the 1940s, the real roots of the revision of the judicial article can be found in the failed movement in the late 1960s to replace Kentucky’s 1891 constitution. Unbowed by the defeat, judicial reformers immediately set out to pass a separate amendment reforming the courts, …

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

All Faculty Scholarship

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …

Economic Emergency And The Rule Of Law, Bernadette A. Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

The Founders And Slavery, Arthur R. Landever

Law Faculty Presentations and Testimony

The point of my talk is that our founders, who our tradition praises profusely of course, as men on Mount Olympus, had moral blinders on. I'm going to talk about key founders. Then I'm going to talk about the key English case, decided in 1772, Somerset v. Stuart. Then I'm going to talk about the Compromises of the 1770s and 1780s. Then I'm going to talk about what we can and can't learn from history. Then I'm going to consider what our generation is doing in the 21st century, considering what might shock our own descendants, two hundred years from …

How To Skip The Constitution, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Reverse-Erie, Kevin M. Clermont

Cornell Law Faculty Publications

Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding …

Constitutional Collectivism And Ex-Offender Residence Exclusion Laws, Wayne A. Logan

Scholarly Publications

The U.S. has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that the “the peoples of the several states must sink or swim together.” The article discusses …

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …

The Rhetoric For Ratification: The Argument Of "The Federalist" And Its Impact On Constitutional Interpretation, Dan T. Coenen

Scholarly Works

Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist does not qualify as the sort of …

Original Intent In The First Congress, Louis J. Sirico Jr.

Working Paper Series

Most of the literature on this country’s Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

The Ninth Amendment: It Means What It Says, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines thirteen …

Commenting On The Views Of Roger Pilon, Arthur R. Landever

Law Faculty Presentations and Testimony

Professor Landever comments upon the views of Roger Pilon of the Cato Institute on interpretation of the U.S. Constitution.

Civil Due Process, Criminal Due Process, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Verifiable Electronic Voting System: An Open Source Solution, Halina Kaminski, Mark Perry

Computer Science Publications

Elections, referenda and polls are vital processes for the operation of a modern democracy. They form the mechanism for transferring power from citizens to their representatives. Although some commentators claim that the pencil-and-paper systems used in countries such as Canada and UK are still the best method of avoiding voterigging, recent election problems, and the need for faster, better, cheaper vote counting, have stimulated great interest in managing the election process through the use of electronic voting systems. While computer scientists, for the most part, have been warning of the possible perils of such action, vendors have forged ahead with …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Cornell Law Faculty Publications

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

Through A Glass Darkly: Van Orden, Mccreary, And The Dangers Of Transparency In Establishment Clause Jurisprudence, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive branch actors interpret statutes, should they use the same methods as the courts? This Article takes up the question by considering a rule frequently invoked by the courts-the canon of constitutional avoidance. In addition to being a cardinal principle of judicial statutory interpretation, the avoidance canon also appears regularly and prominently in the work of the executive branch. It has played a central role, for example, in some of the most hotly debated episodes of executive branch statutory interpretation in the "war on terror." Typically, executive invocations of avoidance are supported by citation to one or more Supreme …

Constitutional Referendum In The United States Of America, William B. Fisch

Faculty Publications

The United States of America, as a federation of now 50 states each with its own constitution and legal system still enjoying a large degree of governmental autonomy within the national legal framework, presents a strikingly mixed picture regarding the use of direct democracy--the submission of proposed governmental action to a popular vote--in law- and constitution-making processes. At the national level, direct democracy has never been used for either type of enactment. At the state and local level, however, its use dates back to colonial times and has been increasing gradually (though still not universal) ever since. Since the mid-19th …

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the …

The Voting Rights Act Of 1965: A Selected Annotated Bibliography, Terrye Conroy

Faculty Publications

Several remedial or "special" provisions of the Voting Rights Act of 1965, which were enacted as temporary measures and were set to expire in August 2007 if not reauthorized by Congress, were recently extended for another twenty-five years. Ms. Conroy offers a selected bibliography of resources to introduce researchers to the issues involved in the debate over the Act's reauthorization and its future implementation.

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West

Scholarly Works

This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful …

The New Line Item Veto Proposal: This Time It’S Constitutional (Mostly), Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Section 1: Moot Court, Partial Birth Abortion, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian

Working Paper Series

In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …