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Articles 1 - 11 of 11
Full-Text Articles in Public Law and Legal Theory
How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.
How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.
Working Paper Series
This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …
Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan
Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan
Working Paper Series
There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …
Hate Speech, C. Edwin Baker
Hate Speech, C. Edwin Baker
All Faculty Scholarship
This paper describes the rationale that a full protection theory of free speech, a theory based on respect for individual autonomy, would give for protecting hate speech. The paper then notes that such a rationale will be unpersuasive to many (including this author) if the harms associated with a failure to outlaw hate speech are as great as often suggested – most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The article then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons …
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
Polyphonic Stare Decisis: Listening To Non-Article Iii Actors, Kermit Roosevelt Iii
Polyphonic Stare Decisis: Listening To Non-Article Iii Actors, Kermit Roosevelt Iii
All Faculty Scholarship
This article explores the input that non-Article III actors can and should have in the Supreme Court’s decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.
Prolonged Solitary Confinement And The Constitution, Jules Lobel
Prolonged Solitary Confinement And The Constitution, Jules Lobel
Articles
This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in …
Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii
Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii
All Faculty Scholarship
Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
All Faculty Scholarship
The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein
All Faculty Scholarship
This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.
Reconstructing The Race-Sex Analogy, Serena Mayeri
Reconstructing The Race-Sex Analogy, Serena Mayeri
All Faculty Scholarship
No abstract provided.
The Perils Of Theory, Peter L. Strauss
The Perils Of Theory, Peter L. Strauss
Faculty Scholarship
As I recall, Professor Clark had more sense than to be my student at Columbia, but I heard a lot about him from admiring colleagues. Clearly he has fulfilled the promise they saw, and this remarkable Symposium is only one indicator of that. The article to which our attention is properly drawn, more than two and a quarter centuries into our nation's history, has an originalist base, tightly and persuasively focused on original understandings of the Supremacy Clause. Professor Clark lays out a cogent account of the Clause's politics and the centrality of its language to the most fundamental of …