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Full-Text Articles in Legal History

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling Jan 1993

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost as ...


The Aspirational Constitution, Robin West Jan 1993

The Aspirational Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one ...


Natural Law Ambiguities, Robin West Jan 1993

Natural Law Ambiguities, Robin West

Georgetown Law Faculty Publications and Other Works

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a ...