Law Commons^™

Constitutional Legitimacy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …

Suing The Federal Government: Sovereignty, Immunity, And Judicial Independence, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

As I suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal "sovereign immunity" is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of "sovereign immunity." Among the strands of constitutional structure behind federal "sovereign immunity" are Congress' powers over appropriations and the jurisdiction of the …

The National Security Presidency In Constitutional Context: Reflections On Terrorism And The Presidency From The Last Ten Years, James E. Baker

Georgetown Law Faculty Publications and Other Works

In this time of terrorist threat, there is no more important institution to study than the national security presidency. That is because the president is singularly situated to command the instruments to counter terrorism. He is also singularly situated to ensure that such instruments are used effectively, lawfully, and in a manner consistent with constitutional values. I believe I have a duty, based on where I have been, to help others observe and understand the institution of the presidency. I do so because I want the national security presidency to succeed in providing for our physical security and in upholding …

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault

Faculty Scholarship

My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …

Non-Judicial Review, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Professor Mark Tushnet challenges the view that democratic constitutionalism requires courts to dominate constitutional review. He provides three diverse examples of non-judicial institutions involved in constitutional review and examines the institutional incentives to get the analysis" right." Through these examples, Professor Tushnet argues that non-judicial actors may perform constitutional review that is accurate, effective, and capable of gaining public acceptance. Professor Tushnet recommends that scholars conduct further research into non-judicial review to determine whether ultimately more or less judicial review is necessary in constitutional democracies.

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 legislatures …

Factless Jurisprudence, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

More Citizen Jurors Or Fewer Citizen Jurors [Japanese Translation By Satoru Shinomiya], Robert Bloom

Robert M. Bloom

No abstract provided.

Normativité Et Biomédecine Aux Etats-Unis, Charles Baron

Charles H. Baron

No abstract provided.

Searches, Seizures, And Warrants: A Reference Guide To The United States Constitution, Robert Bloom

Robert M. Bloom

No abstract provided.

The Secession Reference And The Limits Of Law, Richard Kay

Richard Kay

When the Supreme Court of Canada issued its judgment on the legality of "unilateral" Quebec secession in August 1998 many Canadians did not know what to make of it. The Court held that the only lawful way in which Quebec might depart the Canadian federation was through one of the amendment mechanisms provided in the Constitution Act 1982. It thus affirmed that Quebec could not secede without the agreement of at least the Houses of the federal Parliament and some number of provincial legislative assemblies. Prime Minister Chretien declared the next day that the judgement was a "victory for all …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren Hutchinson

Darren L Hutchinson

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment's Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

Quale Etica Per I Guidici?, Charles Baron

Charles H. Baron

No abstract provided.

Pay No Attention To That Man Behind The Robe: Judicial Elections, The First Amendment, And Judges As Politicians, Michael R. Dimino

Michael R Dimino

The Right To Effective Assistance Of Capital Postconviction Counsel: Constitutional Implications Of Statutory Grants Of Capital Counsel, Celestine Richards Mcconville

Celestine Richards McConville

The problem of incompetent counsel in capital cases is hardly a secret. Much of the attention, however, has focused on incompetent capital trial counsel. This article, by contrast, addresses the problem of incompetent capital counsel at the state and federal postconviction levels. Like the trial and direct review phases, the capital postconviction phase is critical to an accurate and reliable determination of guilt and death-eligibility. Thus, competent counsel is just as necessary during capital postconviction proceedings as it is during capital trial and direct review proceedings.

The Supreme Court, however, has made clear that there is no constitutional right to …

Policing And Equal Protection, Lawrence Rosenthal

Lawrence Rosenthal

For urban policing, it is the best of times and the worst of times. The innovative and proactive policing techniques that have come into widespread use over the past decade -- sometimes referred to as the "New Policing" -- are credited by many with producing significant reductions in urban crime. The vocal and numerous critics of these tactics, however, claim that the cure has been worse than the disease, by imposing enormous and unwarranted burdens on high crime minority communities where use of these new tactics is concentrated. In this paper, I offer a defense for New Policing as faithful …

Book Review: The Calligraphic State: Conceptualizing The Study Of Society Through Law, Tabatha Abu El-Haj

Tabatha Abu El-Haj

No abstract provided.

Legal Research In Mass Communication, Erik Ugland, Everette E. Dennis, Donald M. Gillmor

Erik Ugland

No abstract provided.

Free Association: The United States Experience, Chimene I. Keitner, W. Michael Reisman

Chimene I Keitner

No abstract provided.

The New Federalism: Discerning Truth In American Myths And Legend, Randy Lee

Randy Lee

No abstract provided.

Confidentiality's Constitutionality: The Incursion On Judicial Powers To Regulate Parties In Court-Connected Mediation, Maureen A. Weston Prof.

Maureen A Weston

This Article explores the interplay between mediation confidentiality legislation and judicial powers to regulate participant conduct in the pretrial process. Part II describes the role of the court in monitoring parties' conduct in distinct settlement-related processes, such as private settlement negotiations, judicial settlement conferences, court-connected arbitration, and court-connected mediation, as well as the corresponding but varied confidentiality protection accorded these processes. Part III examines judicial decisions analyzing the tension between mediation confidentiality and judicial power to monitor and sanction misconduct in a settlement or court-connected mediation setting, specifically comparing the approach used by the California Supreme Court in Foxgate Homeowners’ …

Neo-Positivismo E Pós-Positivismo Jurídico, Haradja L. Torrens

Haradja L Torrens

No abstract provided.

State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan

Donald J. Kochan

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying …

Are Patriots Bigots? An Inquiry Into The Vices Of In-Group Pride, Zachary Elkins, Rui De Figueiredo

Zachary Elkins

No abstract provided.