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Full-Text Articles in Jurisprudence

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores Dec 2012

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by ...


The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet Jan 2006

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and what its sponsors ...


Alternative Forms Of Judicial Review, Mark V. Tushnet Jan 2003

Alternative Forms Of Judicial Review, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here ...


"Shut Up He Explained", Mark V. Tushnet Jan 2001

"Shut Up He Explained", Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and ...


Impeachment As Congressional Constitutional Interpretation, Neal K. Katyal Jan 2000

Impeachment As Congressional Constitutional Interpretation, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption, which I shall call the myth of interpretive symmetry, slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, I illustrate the point with three examples: the roles of history, precedent, and moral philosophy. I show how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a ...


The Vertical Separation Of Powers, Victoria Nourse Jan 1999

The Vertical Separation Of Powers, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Standard understandings of the separation of powers begin with the concept of function. The author argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive and ...