Law Commons^™

Considering Legitimacy, Gillian E. Metzger

Faculty Scholarship

This Article on Richard Fallon’s Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court’s authority, what Fallon calls sociological legitimacy. After setting out Fallon’s accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court’s decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court’s decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the …

Why Lingle Is Half Right, Thomas W. Merrill

Faculty Scholarship

Lingle v. Chevron U.S.A. Inc. is a highly unusual decision in that it repudiated a legal doctrine that the Supreme Court itself had created. The Court was able to do this without overruling any prior decision because the repudiated doctrine-which condemned as a taking any regulation of property that fails to "substantially advance legitimate state interests" – had taken hold in the lower courts but had never been applied by the Court itself in support of a judgment. Lingle is also unusual in that there is no indication that the Court was motivated to jettison the doctrine because it was …

Agora: The United States Constitution And International Law: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

On the docket of the United States Supreme Court in 2004 is a substantial cluster of cases at the intersection of constitutional and international law. In the previous two Supreme Court Terms, the Court had adverted to sources of law and practice outside the United States, in its treatment of constitutional claims involving the death penalty and same-sex relationships. The apparent willingness of the Court to consider international and foreign authorities in reaching its conclusions on contested issues of constitutional law has raised to new prominence the debate over the relationship between constitutional and international law. It is not yet …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Constitutional Law, Kent Greenawalt

Faculty Scholarship

In the last thirty years, the equal protection clause has been largely transformed. Once a point of reference for courts striking down schemes of economic regulation which they regarded as unreasonable or unwise, it is now primarily a source of constitutional standards in the areas of civil rights, reapportionment, and rights of indigents accused of crime. These standards are of immense legal and social consequence. Since the landmark case of Brown v. Board of Educ. their development-characterized by Professor Philip B. Kurland as "the rise of egalitarianism" – has been paralleled by an increasing attention to the claims of equality …