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Articles 1 - 9 of 9
Full-Text Articles in Law
New Textualism And The Thirteenth Amendment, Leah Litman
New Textualism And The Thirteenth Amendment, Leah Litman
Articles
Michele Goodwin’s piece raises important questions about whether troubling modern-day labor practices in jails and prisons are consistent with the Thirteenth Amendment. In Goodwin’s telling, the ratification of the Thirteenth Amendment formally ended the institution of slavery, but the Amendment allowed practices resembling slavery to continue, perhaps reflecting the extant stereotypes and racism that formally amending the Constitution cannot root out. Indeed, Goodwin excavates historical materials that suggest the people who drafted and ratified the Amendment understood and expected that it would allow the perpetuation of slavery in another form. As Goodwin explains, most historians have argued that the Thirteenth …
E-Notice And Comment On Due Process, Sergio J. Campos
Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson
Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson
Articles
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. …
Second Redemption, Third Reconstruction, Richard A. Primus
Second Redemption, Third Reconstruction, Richard A. Primus
Articles
In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …
Commercial Speech Protection As Consumer Protection, Felix T. Wu
Commercial Speech Protection As Consumer Protection, Felix T. Wu
Articles
The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …
Harry Flechtner--A True Teacher/Scholar, With Rhythm, Ronald A. Brand
Harry Flechtner--A True Teacher/Scholar, With Rhythm, Ronald A. Brand
Articles
This is a tribute to Professor Emeritus Harry Flechtner upon his retirement from the University of Pittsburgh School of Law. Professor Flechtner was a leading scholar on the United Nations Convention on Contracts for the International Sale of Goods (CISG), a stellar teacher, a musician who used that skill in the classroom as well as the Vienna Konzerthaus, and a genuinely nice person.
An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias
An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias
Articles
There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …
The Progressive Idea Of Democratic Administration, William J. Novak
The Progressive Idea Of Democratic Administration, William J. Novak
Articles
The first thing to acknowledge about administration is that administration is coincident with governance. Far from being a modern invention or some kind of radical departure from an original political or legal tradition, administration is among the oldest practices of governments. Indeed, it is impossible to conceive of government without administration. Laws need to be enforced, legislation needs to be implemented, and collective goods need to be secured. Governance is mostly a matter of actions and practices, making administration perhaps the most truly reflective aspect of legal and political culture.
Getting Past The Imperial Presidency, Deborah Pearlstein
Getting Past The Imperial Presidency, Deborah Pearlstein
Articles
In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …