Law Commons^™

The Racial Metamorphosis Of Justice Kennedy, With An Eye Towards The End Of The Second Reconstruction, Luis Fuentes-Rohwer

Luis Fuentes-Rohwer

This Essay examines the recent turn in Justice Kennedy’s race jurisprudence. The shift is palpable, from a narrow and uncompromising approach to the use of race by state actors to a more nuanced and contextual understanding of the role that race plays in American society. This is no small change, best explained by Justice Kennedy’s status on the Court as a “super median.” This is a position of power and influence, as any majority coalition must count on Justice Kennedy’s vote; but more importantly, it is also a position of true independence. Justice Kennedy entertains his idiosyncratic and very personal …

Between Judicial And Legislative Supremacy: A Cautious Defense Of Constrained Judicial Review, Alon Harel, Adam Shinar

Alon Harel

This Article explores and evaluates theories that we label “theories of constrained judicial review.” These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both the constitutional supremacy of courts and adopt an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution.

To evaluate such theories, this Article develops both a negative and a positive argument. It criticizes the existing justifications of constrained judicial review and provides a new justification for such theories. More specifically, we argue that the ultimate justification for constrained judicial review cannot be grounded in instrumentalist or consequentialist …

The Skinny On The Federal Menu-Labeling Law & Why It Should Survive A First Amendment Challenge, Dayna B. Royal

Dayna B. Royal

In America’s battle of the bulge, the bulge is winning. Contributing to this obesity epidemic is Americans’ increasingly widespread practice of eating at restaurants where deceptively fattening food is served to patrons who grossly underestimate the calories in their meals.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a …