Law Commons^™

Equivocal Originalism, Gary S. Lawson

Faculty Scholarship

"Originalism" is a term shrouded in ambiguity and ripe for equivocation. A recent article by Stephen Sachs in the Harvard Law Review tries to clarify the discussion by distinguishing between originalism as a decision standard, or a set of criteria for ascertaining the truth conditions for propositions, and a decision procedure, or a mechanism for ascertaining whether those truth conditions are satisfied in any given context. That is a helpful distinction, but it still leaves much room for multiple and confusing uses of the term originalism. Jumping off from comments on Professor Sachs's article by Mitchell Berman and Judge Andrew …

Considering Legitimacy, Gillian E. Metzger

Faculty Scholarship

This Article on Richard Fallon’s Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court’s authority, what Fallon calls sociological legitimacy. After setting out Fallon’s accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court’s decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court’s decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the …

A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, James D. Wilets, Areto A. Imoukhuede

Faculty Scholarship

No abstract provided.

Constitutional Law And Rhetoric, Colin Starger

All Faculty Scholarship

What are the legitimate types of argument in constitutional debate? This is a perennial question in American law and every generation of constitutional scholars has the right to ask it anew. For over thirty years, Phillip Bobbitt’s taxonomy of legitimate constitutional argument types has reigned as the most influential and enduring in the scholarly discourse. In a recent article, Jamal Greene has proposed a welcome but flawed rhetorical re-conception of Bobbitt’s venerable typology. By identifying and correcting the errors in Greene’s framework, this Article provides a rigorous theoretical grounding for the entire constitutional law and rhetoric project.

When properly grounded, …

The Jury's Constitutional Judgment, Nathan Chapman

Scholarly Works

Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …

Constitutional Cases And The Four Cardinal Virtues, R. George Wright

Cleveland State Law Review

In addressing constitutional cases, judges face no shortage of legal rules, tests, principles, doctrines, and policies upon which to draw. In those cases, the challenge is assumed to be to identify and apply the most relevant such legal rules, tests, principles, doctrines, and policies. An accompanying judicial opinion tries to articulate this process, partly to legitimize the outcome, partly to provide guidance, and perhaps partly for purposes of civic education and inspiration. This Article recommends a somewhat different approach to constitutional adjudication. Specifically, this Article recommends supplementing the above standard forms of constitutional adjudication with appropriate and legitimate attention to …

Foreign Law As Legislative Fact In Constitutional Cases, A. Christopher Bryant

Faculty Articles and Other Publications

Do we really need another law review article about foreign law in constitutional interpretation? In fact, we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

Why Lingle Is Half Right, Thomas W. Merrill

Faculty Scholarship

Lingle v. Chevron U.S.A. Inc. is a highly unusual decision in that it repudiated a legal doctrine that the Supreme Court itself had created. The Court was able to do this without overruling any prior decision because the repudiated doctrine-which condemned as a taking any regulation of property that fails to "substantially advance legitimate state interests" – had taken hold in the lower courts but had never been applied by the Court itself in support of a judgment. Lingle is also unusual in that there is no indication that the Court was motivated to jettison the doctrine because it was …

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

Global Constitutional Lawmaking, Sungjoon Cho

Sungjoon Cho

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 …

Agora: The United States Constitution And International Law: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

On the docket of the United States Supreme Court in 2004 is a substantial cluster of cases at the intersection of constitutional and international law. In the previous two Supreme Court Terms, the Court had adverted to sources of law and practice outside the United States, in its treatment of constitutional claims involving the death penalty and same-sex relationships. The apparent willingness of the Court to consider international and foreign authorities in reaching its conclusions on contested issues of constitutional law has raised to new prominence the debate over the relationship between constitutional and international law. It is not yet …

A Kétharmados Törvények Helye A Magyar Jogforrási Hierarchiában [Qualified Majority And The Hierarchy Of Sources Of Law In Hungary], Peter Cserne, András Jakab

Péter Cserne

No abstract provided.

Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider

Book Chapters

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.

State Constitutional Jurisprudence: Decision Making At The New York Court Of Appeals, Michael Hutter, Vincent Bonventre, Luke Bierman

Touro Law Review

No abstract provided.

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard

Steve Sheppard

Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.

The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

Republican Revival/Interpretive Turn, Stephen M. Feldman

Stephen M. Feldman

The civic republican revival and the interpretive turn are two leading movements in constitutional jurisprudence. Civic republicanism emphasizes that citizens belong to a political community where they participate in a dialogue about the common good. Interpretivism, meanwhile, holds that all of our practices, including constitutional adjudication, are interpretive; we are always situated within interpretative communities and traditions that simultaneously constrain and enable understanding. Civic republicanism and interpretivism, however, both face serious challenges. Critics of the republican revival charge that it invites oppression and silencing of divergent voices because it emphasizes the community and the common good. Opponents of the interpretive …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …

Are Constitutional Cases Political?, Brian Slattery

Brian Slattery

Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.

In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …

The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson

Law Faculty Articles and Essays

In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Constitutional Law As Moral Philosophy, Gerard E. Lynch

Faculty Scholarship

The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or …

The Legitimacy Debate In Constitutional Adjudication: An Assessment And A Different Perspective, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.