Social and Behavioral Sciences Commons^™

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Stop Terry : Reasonable Suspicion, Race, And A Proposal To Limit Terry Stops, Renée M. Hutchins

Renée M. Hutchins

The Terry doctrine, which grants a police officer the authority to stop and frisk based on his or her reasonable suspicion rather than probable cause, was created by the Supreme Court at a time when the nation con- fronted a particular moment of violent racial strife. Since Terry was decided, the Supreme Court has continued to expand the reach of the doctrine—which opened the door for potential abuse. Existing data is increasingly proving that the loosening of constitutional standards is causing substantial harms to people of color nationwide. This article joins the existing scholarly discussion surrounding this decision to suggest …

Public Reason As Higher Law, Gordon D. Ballingrud

Gordon D Ballingrud

This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law …

Constitutions As Coordinating Devices, Gillian K. Hadfield, Barry R. Weingast

Gillian K Hadfield

Why do successful constitutions have the attributes characteristically associated with the rule of law? Why do constitutions involve public reasoning? And, how is such a system sustained as an equilibrium? In this paper, we adapt the framework in our previous work on “what is law?” to the problem of constitutions and their enforcement (see Hadfield and Weingast 2012, 2013a,b). We present an account of constitutional law characterized by two features: a system of distinctive reasoning and process that is grounded in economic and political functionality; and a set of legal attributes such as generality, stability, publicity, clarity, non-contradictoriness, and consistency. …