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Full-Text Articles in Law
An Originalism For Foreign Affairs, Ingrid Wuerth
An Originalism For Foreign Affairs, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …
Election As Appointment: The Tennessee Plan Reconsidered, Brian T. Fitzpatrick
Election As Appointment: The Tennessee Plan Reconsidered, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
Tennessee's merit system for selecting judges - referred to as the Tennessee Plan - has been controversial ever since it was enacted in 1971 to replace contested elections. The greatest controversy has been whether the Plan is even constitutional. The Tennessee constitution states that all judges "shall be elected by the qualified voters" of the state. Yet, under the Tennessee Plan, the governor appoints all appellate judges, and those judges come before the voters only after a period of time on the bench and only in uncontested yes-no retention referenda. In 1977, the people of Tennessee were asked to amend …
Counterinsurgency And Constitutional Design, Ganesh Sitaraman
Counterinsurgency And Constitutional Design, Ganesh Sitaraman
Vanderbilt Law School Faculty Publications
Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary. This Note explores …
"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie
"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie
Vanderbilt Law School Faculty Publications
In "Gonzales v. Carhart", the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court's analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other …
Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick
Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
In the Spring 2008 issue of the Tennessee Law Review, I wrote an essay questioning whether Tennessee's merit system for selecting appellate judges - the Tennessee Plan - satisfies the requirements of the Tennessee Constitution. The Tennessee Constitution requires all judges to be elected by the qualified voters of the state, yet, under the Plan, all appellate judges are initially selected by gubernatorial appointment and then retained in uncontested referenda. I argued that both the appointment and retention features of the Plan are unconstitutional, and I recommended that the legislature refuse to reauthorize the Plan when it expires in June …