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Articles 1 - 30 of 48
Full-Text Articles in Law
From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West
From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West
Georgetown Law Faculty Publications and Other Works
The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and …
Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee
Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee
Research Collection Yong Pung How School Of Law
The offence of scandalizing the court, a form of contempt of court, is regarded as obsolete in the United Kingdom. However, it continues to be imposed in other Commonwealth nations and remains very much alive in Singapore, having been applied in a crop of cases between 2006 and 2009. This short commentary examines one of these cases, Attorney-General v Hertzberg and others [2009] 1 Singapore Law Reports 1103, which has generated worldwide interest as it arose out of articles published in the Wall Street Journal Asia. In Hertzberg, the High Court of Singapore held that utterances by an alleged contemnor …
The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson
The 'Principal' Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson
Faculty Scholarship
The Constitution creates very few federal offices. It creates the House and Senate,1 the Speaker of the House2 and the President pro tempore of the Senate,3 the President,4 the Vice President,5 and the Supreme Court6--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission7 and who Congress may impeach and remove,8 but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power9 and the Vice President's modest voting …
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
Scholarly Works
In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …
The Fog Of Certainty, Robert B. Ahdieh
The Fog Of Certainty, Robert B. Ahdieh
Faculty Scholarship
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Not Very Collegial: Exploring Bans On Illegal Immigrant Admissions To State Colleges And Universities, Marcia A. Yablon-Zug, Danielle R. Holley-Walker
Faculty Publications
No abstract provided.
'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker
'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker
All Faculty Scholarship
This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civil rights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's …
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
All Faculty Scholarship
This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear …
Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman
Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman
Articles & Chapters
Traditionally, scholars and judges have treated emotion as a destructive force within constitutional culture. This Article uses recent developments in social psychology, neurobiology, and political psychology to challenge this dominant account and reposition emotion as central to our collective constitutional endeavor. It argues that emotion is critical to commitment and imagination, two features of human behavior that are essential to constitutional legitimacy and innovation. Further, emotions shape our perceptions and preferences about constitutional values through their impact on attitude development and moral decision-making. Finally, our increased understanding of emotion's impact on human behavior has the potential to alter the way …
Federalism At The 'Cathedral': Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Scholarly Publications
As the climate crisis, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But heady plans for energy reform may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule in 1992. The same dry technicality has also threatened the effective management of storm water pollution, contributed to the failed response to Hurricane Katrina, and poses ongoing regulatory obstacles in such critical …
The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell
The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell
Faculty Working Papers
In 1789 it was possible to speak of a federation of distinct States joined together for their mutual advantage, but today it is rather the Nation that is divided into subnational units. What caused this shift in focus from the States to the Federal Government? Surely the transformation from a collection of thirteen historically separate States clustered along the Atlantic seaboard to a group of fifty States largely carved out of Federal territory has played a role. Building on previous analysis of the economics of federalism, this essay considers the dynamic effects of increasing the number of states on the …
The "Define And Punish" Clause And The Limit Of Universal Jurisdiction, Eugene Kontorovich
The "Define And Punish" Clause And The Limit Of Universal Jurisdiction, Eugene Kontorovich
Faculty Working Papers
This Article examines whether the "Define and Punish" clause of the Constitution empowers Congress to criminalize foreign conduct unconnected to the United States. Answering this question requires exploring the Constitution's "Piracies and Felonies" provision. While it is hard to believe this can still be said of any constitutional provision, no previous work has examined the scope of the "Piracies and Felonies" powers. Yet the importance of this inquiry is more than academic. Despite its obscurity, the Piracies and Felonies power is the purported Art. I basis for a statute currently in force, which represents Congress's most aggressive use of universal …
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
Faculty Working Papers
In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …
Imagine All The Women: Power, Gender And The Transformative Possibilities Of The South African Constitution, Penelope Andrews
Imagine All The Women: Power, Gender And The Transformative Possibilities Of The South African Constitution, Penelope Andrews
Articles & Chapters
This chapter will explore the South African Constitution, and more particularly, the Bill of Rights, as a vehicle for social and economic transformation. By analyzing the provisions relating to gender equality in South Africa's Constitution, as well as decisions of the Constitutional Court, this chapter will examine whether theconstitutional rights framework in South Africa contains within it the transformative possibilities that will lead to gender equality in all spheres of South African society, and particularly in the economic sphere.
Who's Afraid Of Polygamy? Exploring The Boundaries Of Family, Equality And Custom In South Africa, Penelope Andrews
Who's Afraid Of Polygamy? Exploring The Boundaries Of Family, Equality And Custom In South Africa, Penelope Andrews
Articles & Chapters
South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. This Article examines the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, it focuses on the Recognition of Customary Marriages Act, a statute that purports to regulate customary marriages, including …
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Law Faculty Publications
No abstract provided.
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Journal Articles
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …
"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks
"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks
Publications
This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.
House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson
House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson
Publications
In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …
Rights, Remedies And Facial Challenges, Maya Manian
Rights, Remedies And Facial Challenges, Maya Manian
Articles in Law Reviews & Other Academic Journals
In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …
From Ballots To Bullets: District Of Columbia V. Heller And The New Civil Rights, Anders Walker
From Ballots To Bullets: District Of Columbia V. Heller And The New Civil Rights, Anders Walker
All Faculty Scholarship
This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the …
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Faculty Working Papers
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Faculty Working Papers
This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …
Religious Establishment And Autonomy, Andrew Koppelman
Religious Establishment And Autonomy, Andrew Koppelman
Faculty Working Papers
Kent Greenawalt claims that one rationale for nonestablishment of religion is personal autonomy. If, however, the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), autonomy as such is not what is being protected. The most promising alternative is to understand religion as a distinctive human good that is being protected from government interference.
Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph
Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph
Georgetown Law Faculty Publications and Other Works
In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I …
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Journal Articles
At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …
On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos
On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos
Vanderbilt Law School Faculty Publications
Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a …
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Emotional Common Sense As Constitutional Law, Terry A. Maroney
Vanderbilt Law School Faculty Publications
In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …
Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan
Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …
Cross-Examining Film, Jessica Silbey
Cross-Examining Film, Jessica Silbey
Faculty Scholarship
The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect's Fourth Amendment rights when he caused the suspect's car to crash. The court's decision relies almost entirely on the filmed version of the high-speed police chase taken from a "dash-cam," a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell …