Law Commons^™

Meaning And Belief In Constitutional Interpretation, Andrei Marmor

Fordham Law Review

No abstract provided.

Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames

Fordham Law Review

No abstract provided.

Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith

Fordham Law Review

No abstract provided.

Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell

Fordham Law Review

No abstract provided.

Accepting Contested Meanings, Bernadette Meyler

Fordham Law Review

No abstract provided.

The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks

Fordham Law Review

    The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.

    This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …

Navigating The Space Between Dueling Sovereigns, Miriam Galston

Touro Law Review

No abstract provided.

Constitutional Conundrums In Arbitration: Book Review Of Arbitration And The Constitution, S. I. Strong

Faculty Publications

The combination of arbitration and constitutional law is the topic of Professor Peter Rutledge's new book, and the focus of this review essay, which will consider, among other things, whether these two subjects are compatible.

2013 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Campus News, page 3

Clinics News, page 16

Faculty Briefs, page 18

Felix Wu, page 22

Booting Up, page 24

Michel Rosenfeld, page 36

Legal Style, page 40

Our New York, page 44

Peter Markowitz, page 46

Alumni News & Class Notes, page 58

Floyd Abrams, page 68

"We The People," Constitutional Accountability, And Outsourcing Government, Kimberly L. Wehle

All Faculty Scholarship

The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the "federal government" itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do …

Distinguishing The Corporal From The Divine: Legal Fictions Create Bodies Not Souls, Daisy Ayllon

Seventh Circuit Review

Can a for-profit, secular corporation exercise religion? If so, does the Affordable Care Act's requirement that employer-provided health insurance plans offer women of reproductive age contraceptives violate free exercise rights?

Plaintiffs challenging the "contraceptive mandate," as it is commonly known, argue that it violates their rights under the Religious Freedom Restoration Act (RFRA) because it imposes a substantial burden on their religious exercise without meeting strict scrutiny. Although these challenges do present courts with a novel issue (whether a secular, for-profit corporation is a "person" capable of "exercising religion"), the answer to the broader question should be clear: requiring corporate-provided …

Led Blindly: One Circuit's Struggle To Faithfully Apply The U.S. Supreme Court's Religious Symbols Constitutional Analysis, William M. Janssen

West Virginia Law Review

No abstract provided.

The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Violating Due Process: The Case For Changing Texas State Trafficking Laws For Minors, Cristina M. Becker

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Young Sex Offender Debacle: The Continued Need For Changes To Juvenile Sex Offender Registry Requirements, Samantha Brewster-Owens

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Why Turner V. Rogers Was And Wasn’T Correctly Decided: How The Fourteenth Amendment Should Be Read For Child Support Contemnors, Gina Rose Lauterio

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord …

Book Review Of The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, By Colin Dayan, Dean Spade

Journal of Legal Education

No abstract provided.

Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin

San Diego Law Review

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …

Against Agnosticism: Why The Liberal State Isn't Just One (Authority) Among The Many, Linda C. Mcclain

Faculty Scholarship

This article takes up the gauntlet thrown down by Professor Abner Greene’s recent book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, to those scholars, politicians, and activists who believe that realizing the ideal of e pluribus unum (out of many, one) as well as constitutional principles of liberty and equality require a robust role for government. Government, Greene argues, is just one source of authority among many others, and citizens – or even public officials – have no general moral duty to obey the law. The political and constitutional order of the United States, he contends, …

Justice John Marshall Harlan: Lectures On Constitutional Law, 1897-98, Brian L. Frye, Josh Blackman, Michael Mccloskey

Law Faculty Scholarly Articles

From 1889 to 1910, while serving on the United States Supreme Court, the first Justice John Marshall Harlan taught at the Columbian College of Law, which later became The George Washington School of Law. During the 1897–1898 academic year, one of Harlan’s students, George Johannes, along with a classmate, transcribed verbatim the twenty-seven lectures Justice Harlan delivered on constitutional law. In 1955, Johannes sent his copy of the transcripts to the second Justice Harlan, who eventually deposited them in the Library of Congress.

To create this annotated transcript of Justice Harlan’s lectures, Professor Frye purchased a microfilm copy of Johannes’s …

Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman

Indiana Journal of Global Legal Studies

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism-just as inevitably-creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: "kill off" all competing laws by declaring that one set of norms-and only one-shall …

Societal Constitutionalism, Social Movements, And Constitutionalism From Below, Gavin W. Anderson

Indiana Journal of Global Legal Studies

Within constitutional theory, in comparison to other fields of scholarship, the significance of transnational social movements has been relatively unexamined in the literature. Societal constitutionalism, grounded in the sociological method and open to reexamining received understandings of constitutionalism, would appear conducive to undertaking this enterprise. However, the general absence of social movements from the societal constitutionalism literature is not coincidental, and reflects a shared commitment with more conventional approaches to an institutional conception of constitutionalism, and a belief in the latter's necessary benevolence and Western origin. These assumptions reflect the limited focus of contemporary analyses of globalization and constitutionalism upon …

Expanding Constitutionalism, Gunther Teubner, Anna Beckers

Indiana Journal of Global Legal Studies

Transnational Societal Constitutionalism Symposium, Collegio Carlo Alberto, Turin Italy, May 17-19, 2012

On The Politics Of Societal Constitutionalism, Emilios Christodoulidis

Indiana Journal of Global Legal Studies

This paper is an internal critique of the theory of societal constitutionalism as developed by Gunther Teubner, with a specific emphasis on the constitutional and the political dimensions of the theory. As critique it focuses on the arguably unacknowledged dangers of co-option: the danger that constitutionalization, as an ongoing process, undercuts what we typically associate with the constitutional, which is its framing function; that this problem is accentuated when it comes to the transnational; and that its reflexivity runs the danger of market capture, in which case it remains only nominally political. The danger of market capture for societal constitutionalism …

Transnational Corporations' Outward Expression Of Inward Self-Constitution: The Enforcement Of Human Rights By Apple, Inc., Larry Cata Backer

Indiana Journal of Global Legal Studies

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project-the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states-that is, to those manifestations of organized power constituted by a …

We And Cyberlaw: The Spatial Unity Of Constitutional Orders, Hans Lindahl

Indiana Journal of Global Legal Studies

This paper scrutinizes the fundamental assumption governing Gunther Teubner's theory of societal constitutionalism, namely that societal constitutions are ultimately about the regulation of inclusion and exclusion in global function systems. While endorsing the central role of inclusion/exclusion in constitutions, societal or otherwise, I argue that inclusion and exclusion are primordial categories of collective action, rather than functional categories. As a result, the self-closure which gives rise to a legal collective is spatial as much as it is temporal, and subjective no less than material. Inasmuch as legal orders must establish who ought to do what, where, and when, this entails, …

Transnational Normative Orders: The Constitutionalism Of Intra- And Trans-Normative Law, Poul F. Kjaer

Indiana Journal of Global Legal Studies

No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. …

Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl

Indiana Journal of Global Legal Studies

The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they …