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Full-Text Articles in Law
Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias
Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias
Faculty Scholarship
American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament – and to rectify it – is to pay more attention to the role that organized wealth plays in our system of checks and balances.
This Article shows that the increasing concentration …
The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller
The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller
Faculty Scholarship
For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …
Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan
Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan
Faculty Scholarship
Imagine a cold morning early in February. Slowly sipping coffee in an effort to awaken fully, you are reading through the Supreme Court advance sheets. You come across the following brief opinion:
PER CURIAM. Fisher v. Rye Co., No. 81-1, and First Savings Bank v. Smith, No. 81-2. These petitions for certiorari have been consolidated for disposition in a single opin-ion. No. 81-1 challenges an Executive Order that, in an effort to combat gender-based discrimination, requires government contractors to adopt affirmative action programs. No argument is made that the Executive Order is authorized by statute. Concluding that the …