Law Commons^™

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

The Life Of An Unknown Assassin: Leon Czolgosz And The Death Of William Mckinley, Cary Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of this essay is to examine the discourses that surrounded the life of Leon Czolgosz, the assassin of President William McKinley. The gaps in Czolgosz’s life, his peculiar silences, his poor health and the ambiguity and thinness of his confession, rather than taken as instances of mental and physical distress, have, instead, been understood as signs of a revolutionary anarchistic assassin. Czolgosz is an expression of a cultural tradition in somatic form. I argue that the discursive construction of criminality, already present in the late nineteenth century within the medical and human sciences, is what shaped Czolgosz’s life …

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert C. Hockett

Cornell Law Faculty Publications

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Philip Hamburger's Law And Judicial Duty: The Origins Of Judicial Review, Robert J. Steinfeld

Book Reviews

No abstract provided.

Access Denied: Sexual Victimization Of Juveniles In Correctional Facilities -- How Senate Bill 585 Could Have Helped, Jillian Malizio

Law Student Publications

The right to counsel is a fundamental right, one the framers of our Constitution intended to apply to all American citizens. Virginia statutes and case law have protected the rights of incarcerated adults and it is now time to grant those same protections to the juveniles in their custody. Part II of this comment will review the requirement of a prisoner’s right to “meaningful access” to the courts from both an adult and juvenile’s perspective. An examination of jurisprudence from the Supreme Court of the United States, and Circuit Courts, reveals the history and importance of “meaningful access” and shows …

Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna

Scholarly Articles

Not available.

The Text Through Time, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The text of a written constitution or bill of rights is prone to ‘drift’ or ‘slippage’ in the meanings of terms. Even if such meanings have not altered over time, because of changes in attitudes and values there may be disagreement with the text’s framers as to the scenarios that are covered or not covered by terms. This article submits that the distinction between the connotation and denotation of a term that has been applied in Australian jurisprudence is useful for determining the meaning of the text through time. The connotation of a term is the generally unchanging bundle of …

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

Book Review. Joan Biskupic, An American Original: The Life And Constitution Of Supreme Court Justice Antonin Scalia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

The Pitfalls Of Dealing With Witnesses In Public Corruption Prosecutions, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan

Articles

The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship …

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

Understanding The Recurrent Crisis In Legal Romanticism: Two Criteria For Coherent Doubt, Chris Sagers

Law Faculty Articles and Essays

Broadly skeptical or relativistic criticisms of law and legal discourse, of the kind prevalent in the last generation in American legal scholarship, pose an inherent logic problem: they tend to impugn normativity itself just as much as they do their intended target. What seems amiss is that the act of critique is itself normative. However it is stated, and notwithstanding efforts by the critic to say otherwise, it is hard to see how the normativity implied in the very act of critique—indeed, in the very act of having purposes at all—is not at odds with the criticism itself.

As an …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Scholarly Works

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Wittgenstein Tests Mr. Justice Holmes: On Holmes's Proposal To Separate Legal Concepts From Moral Concepts, Thomas D. Eisele

Faculty Articles and Other Publications

No abstract provided.

Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin

Articles & Chapters

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same …

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay

All Faculty Scholarship

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and the iconic, if …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato

Faculty Working Papers

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations …

Marbury V. Madison And The Foundation Of Law, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Two Federal Circuits, R. Polk Wagner

All Faculty Scholarship

No abstract provided.

Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …

A Path Not Taken: Hans Kelsen's Pure Theory Of Law In The Land Of Legal Realists, D. A. Jeremy Telman

Law Faculty Publications

This Essay is a contribution to a volume on the influence of Hans Kelsen’s legal theory in over a dozen countries. The Essay offers four explanations for the failure of Kelsen’s pure theory of law to take hold in the United States. Part I covers the argument that Kelsen’s approach failed in the United States because it is inferior to H. L. A. Hart’s brand of legal positivism. Part II discusses the historical context in which Kelsen taught and published in the United States and explores both philosophical and sociological reasons why the legal academy in the United States rejected …

Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland

Law Faculty Publications

No abstract provided.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Los Grandes Rechazos De La Sentencia Roe V. Wade, Richard Stith

Law Faculty Publications

: Quizás mayormente a causa del poder económico de los Estados Unidos, su alta jurisprudencia constitucional suele tener mucha influencia en otros países. En particular, la sentencia de la Corte Suprema norteamericana Roe v. Wade, que declaró un derecho al aborto durante todo el embarazo, puede conducir a la legalización del aborto a petición por los grandes tribunales de otras naciones. Pero antes de intentar de andar este surco abierto por la Corte estadounidense, los otros tribunales desearán saber que la sentencia ha sido rotundamente rechazada por fuentes bastante sorprendentes. El razonamiento de Roe ha sido rechazado por los peritos …

Property And Transitional Justice, Bernadette Atuahene

All Faculty Scholarship

Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …