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Full-Text Articles in Law
Foreign Law And The U.S. Constitution, Kenneth Anderson
Foreign Law And The U.S. Constitution, Kenneth Anderson
Popular Media
The use of foreign law and unratified international treaty law by U.S. courts in U.S. constitutional adjudication has emerged as a major debate among justices of the U.S. Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It …
Abu Ghraib, Diane Marie Amann
Abu Ghraib, Diane Marie Amann
Scholarly Works
This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …
In Search Of A Theory For Constitutional Comparativism, Roger P. Alford
In Search Of A Theory For Constitutional Comparativism, Roger P. Alford
Journal Articles
Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This …
Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty
Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty
Faculty Scholarship
This is an edited version of a debate held at Columbia Law School on February 21, 2005.