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Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

, The American Constitution In The Cycle Of Kali Yuga: Eastern Philosophy Greets Western Democracy, Shiv Narayan Persaud

Journal Publications

This paper will explore the above-mentioned questions while taking into consideration the intent and overarching tenets of the Constitution in relation to the precepts of Kali Yuga. The hope is to generate discourse on some of the trappings of the Constitution and constitutional democracy in an ever changing and increasingly diverse and segmented society-a nation with a multiplicity of cultures with distinctive beliefs and moral systems. Emphatically stated, the intent is not to examine every article or amendment of the Constitution; this would be presumptuous. The intent is to foster an examination of the Constitution as the overall architectural framework …

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam

Book Chapters

This chapter pursues that idea in three parts. Part I reviews the key contributions of The Transformation of Europe. Part II takes us back for a critical analysis of the idea of ‘constitutionalism’ as first developed by Eric Stein and then deployed by Joseph Weiler. On closer inspection, we shall see here that The Transformation of Europe may have neglected a core element of constitutional law, something this chapter terms a ‘generative space’ for law and politics. As this part further explains, recognising this generative element of constitutionalism lies at the heart of the struggle to make sense both practically …

Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez

Articles in Law Reviews & Other Academic Journals

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …

Thoughts On The German Constitutional Court Decision On The Esm, Richard Stith

Law Faculty Publications

No abstract provided.

Constitutional Heterarchy: The Centrality Of Conflict In The European Union And The United States, Daniel Halberstam

Book Chapters

In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its member states, so, too, the global legal order, to the extent that we can speak of one, lacks a singular, uncontested hierarchy among its various parts. To be sure, some have argued that the UN Charter provides …

Local, Global And Plural Constitutionalism: Europe Meets The World., Daniel Halberstam

Book Chapters

The idea that constitutionalism is central to the legitimate exercise of public power has dominated the modern liberal imagination since the Enlightenment. The ideal of limited collective self-governance has spawned a rich and highly diverse tradition of hard-fought national constitutions from the time of the Glorious Revolution into the present. Today, however, constitutionalism faces its greatest challenge yet: the question of its continued relevance to modern governance. With the explosion of governance beyond the state, many wonder whether constitutionalism as we know it is being marginalized or altogether undermined.

Systems Pluralism And Institutional Pluralism In Constitutional Law: National, Supranational, And Global Governance, Daniel Halberstam

Book Chapters

Constitutions are often seen as creating a closed and hierarchically organized system of law. Constitutional systems are taken as closed to claims of legality from outside the system and as setting forth a hierarchy of norms and institutions that governs within the system. This consolidation of authority, in turn, is predominantly associated with a radical political (re)founding of the state. Politics are framed by law and law is grounded in an act of collective politics on the part of an existing or aspiring community defined by shared histories, norms, processes, and politics.

Our Exceptional Constitution, Timothy Zick

Popular Media

No abstract provided.

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Articles in Law Reviews & Other Academic Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

Law Faculty Publications

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

Pluralism In Marbury And Van Gend, Daniel Halberstam

Book Chapters

‘Great cases, like hard cases, make bad law’, Oliver Wendell Holmes, Jr, famously remarked in his first Supreme Court dissent. For Holmes, ‘great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment’. On this account neither Marbury v Madison70 nor Van Gend en Loos would qualify. Van Gend was a case of great principle without greatly interesting facts. And Marbury was a great political battle that nevertheless produced a case of great principle.

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Reviving The Subject Of Law, Penelope J. Pether

Working Paper Series

This essay is an advanced draft of work that will be published in On Philosophy and American Law (Francis J. Mootz III ed. forthcoming, Cambridge U.P., 2009). This edited collection includes responses by a wide range of scholars working in legal theory to Mootz’s challenge to respond to the current state of American legal philosophy, using Karl Llewellyn’s 1934 University of Pennsylvania law review account of the emergence of legal realism as a prompt. Drawing on the author’s recent scholarship on the emergence of a distinctive and impoverished model of “common law” judging in the U.S. since the mid- c20th, …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Journal Articles

Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and which speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of …

Inside The Box - When Exercising Peremptory Challenges, Attorneys Should Keep In Mind The Three-Step Framework Of Batson/Wheeler, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

Egypt's Supreme Constitutional Court: Managing Constitutional Conflict In An Authoritarian, Aspirationally Islamic State, Clark B. Lombardi

Articles

No abstract provided.

The Supreme Constitutional Court Of Egypt On Islamic Law, Veiling And Civil Rights: An Annotated Translation Of Supreme Constitutional Court Of Egypt Case No. 8 Of Judicial Year 17, Clark B. Lombardi, Nathan J. Brown

Articles

The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic legal reasoning, but it gives insight into the Court's views with respect to civil and political rights. The case also …

Do Constitutions Requiring Adherence To Shari`A Threaten Human Rights? How Egypt’S Constitutional Court Reconciles Islamic Law With The Liberal Rule Of Law, Clark B. Lombardi, Nathan J. Brown

Articles

Over the last thirty years, a number of Muslim countries, including most recently Afghanistan and Iraq, have adopted constitutions that require the law of the state to respect fundamental Islamic legal norms. What happens when countries with a secular legal system adopt these "constitutional Islamization" provisions? How do courts interpret them? This article will present a case study of constitutional Islamization in one important and influential country, Egypt. In interpreting Egypt's constitutional Islamization provision, the Supreme Constitutional Court of Egypt has interpreted Shari'a norms to be consistent with international human rights norms and with liberal economic policies. The experience of …

Grutter's First Amendment, Paul Horwitz

University of San Diego Public Law and Legal Theory Research Paper Series

Most of the reaction to the Supreme Court's decision affirming the law school affirmative action policy at issue in Grutter v. Bollinger has focused on its Fourteenth Amendment implications. But Grutter also raises significant First Amendment issues. By reaffirming a First Amendment value of "educational autonomy," the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom, but for First Amendment jurisprudence generally. This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter.

Some of the consequences of the Court's …

The Hollowness Of The Harm Principle, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Generic Constitutional Law, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from …

The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.

What's So Special About American Law?, William Ewald

All Faculty Scholarship

No abstract provided.

Islamic Law As A Source Of Constitutional Law In Egypt: The Constitutionalization Of The Sharia In A Modern Arab State, Clark B. Lombardi

Articles

No abstract provided.