Law Commons^™

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Faculty Publications

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all …

Judicial Engagement, Written Constitutions, And The Value Of Preservation: The Case Of Individual Rights, Elizabeth Price Foley

Faculty Publications

When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for …

The Constitutional Implications Of A Cloning Society, Elizabeth Price Foley

Faculty Publications

This paper examines the social and legal implications of human cloning.

The Constitutional Implications Of Human Cloning, Elizabeth Price Foley

Faculty Publications

Given the theoretical inevitability of human cloning, this Article attempts to fill a current intellectual void by providing an analysis of the most significant legal implications of cloning human beings. Part II sets forth the basic science behind cloning and how cloning differs from other, non-traditional forms of procreation such as in vitro fertilization and artificial insemination. Part III discusses the most commonly feared “science fiction” abuses associated with human cloning and current laws that may prevent such abuses from occurring. Part IV discusses the possible constitutional impediments to banning human cloning, including the First Amendment, the procreational liberty interest …

Framers’ Intent And Military Power: Has Supreme Court Deference To The Military Gone Too Far?, Kalyani Robbins

Faculty Publications

The first ten amendments to the United States Constitution, ratified in 1791 and known as the Bill of Rights, create the core of what people today consider their most basic freedoms. Without these rights, and consistent judicial adherence to them, most Americans would not feel secure. There are two major sources of danger to these basic rights: internal and external. Internally, we must protect ourselves from our own infringement of these rights through the firm restrictions that the Constitution places on the government in its treatment of the people. Externally, we must protect our system of maintaining these freedoms from …

Constitutional Fidelity And The Commerce Clause: A Reply To Professor Ackerman, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

Can the Constitution be legitimately, albeit implicitly, amended by the Supreme Court? The possibility of implicit constitutional amendment - most forcefully advocated by Professor Bruce Ackerman as "transformative" Supreme Court decisions - has been articulated to justify, legitimate, and entrench various radical reinterpretations of the Constitution, most notably the New Deal Court's vast expansion of the power to regulate commerce. The article concludes that such implicit constitutional amendments are theoretically illegitimate and provide strong disincentives for "We the People" to become politically active in order to "correct" flaws in the original Constitution or interpretations thereof that are deemed no longer …