Law Commons^™

Constitutional Circularity, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In supporting the invocation of stare decisis in constitutional cases, the Supreme Court has maintained that its decisions affect how the people conceptualize the government and their rights. Such an argument, which prioritizes contemporary understands of the Constitution over both the intentions of Framers and the nuances of doctrine, suggests that constitutional decisions may affect the meaning of the Constitution itself. In this Article, Professor Abramowicz offers a positive account demonstrating that the Court has used this type of argument, which he dubs “constitutional circularity,” and provides a normative critique. The positive account is relevant not only because it identifies …

High Brow, Lee C. Bollinger

Faculty Scholarship

Terry Sandalow has an extraordinary mind, its power suggested by his incredible brow and forehead. (I'm always reminded, in fact, of Melville's description of the massive size of the sperm whale's head as representing its huge intelligence.) By any measure, Terry is very smart, broadly educated, and deeply sensitive to the nuances of life. From my earliest days on the law faculty, I remember being continually impressed, at faculty discussions and seminars, by his illuminating questions and comments and aware of his reputation among students as one of the most intellectually challenging teachers. Colleagues routinely sought his advice and criticism …

Nationalized Political Discourse, Robert F. Nagel

Publications

No abstract provided.

Chevron's Domain, Thomas W. Merrill, Kristin E. Hickman

Faculty Scholarship

The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. dramatically expanded the circumstances in which courts must defer to agency interpretations of statutes. The idea that deference on questions of law is sometimes required was not new. Prior to Chevron, however, courts were said to have such a duty only when Congress expressly delegates authority to an agency "to define a statutory term or prescribe a method of executing a statutory provision.^" Outside this narrow context, whether courts would defer to an agency's legal interpretation depended upon multiple factors that courts evaluated in …

Getting Beyond Formalism In Constitutional Law: Constitutional Theory Matters, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.

Further Thoughts, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.

Constitutional Law: United States V. Viefhaus And The Demise Of The Libertarian Philosophy In Free Speech Jurisprudence, Stephanie D. Wade

Oklahoma Law Review

No abstract provided.

Mapp Goes Abroad, Craig M. Bradley

Case Western Reserve Law Review

No abstract provided.

Are Congressional Committees Constitutional ?: Radical Textualism, Separation Of Powers, And The Enactment Process, John C. Roberts

Case Western Reserve Law Review

No abstract provided.

Tales Out Of School--Spillover Confessions And Against-Interest Statements Naming Others, Christopher B. Mueller

Publications

No abstract provided.

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

Publications

In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …

A Case Of Unconstitutional Immigration: The Importation Of England's National Curriculum To The United States, Jaime S. Boutwell

Vanderbilt Journal of Transnational Law

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State …

Polling Establishment: Judicial Review, Democracy, And The Endorsement Theory Of The Establishment Clause - Commentary On 'Measured Endorsement', Jamin B. Raskin

Scholarly Articles in Law Reviews & Journals

[In Measured Endorsement] Shari Seidman Diamond and Andrew Koppelman argue that courts should rely on the techniques and methodologies of public opinion polling to survey the public and determine whether such displays endorse religion and therefore violate the Establishment Clause.' The authors support the point by developing an analogy to litigation under the Lanham Act, where courts regularly use evidence from public opinion poll results to determine whether there is legally salient 'consumer confusion' in a trademark dispute. The theoretical problem with this analogy is that the issue at stake under the Lanham Act is whether there is a likelihood …

Replies To Professor Chemerinsky, David W. Levy, Harry F. Tepker Jr., Arthur G. Lefrancois, Kevin W. Saunders, Michael A. Scaperlanda, Katheleen R. Guzman, Lindsay G. Robertson

Oklahoma Law Review

No abstract provided.

What Is It Good For? War Power, Judicial Review, And Constitutional Deliberation, J. Richard Broughton

Oklahoma Law Review

No abstract provided.

Constitutional Law: Establishment Clause V. Free Expression: Adler V. Duval County School Board, Ron Shinn

Oklahoma Law Review

No abstract provided.

Constitutional Law: United States V. Morrison: The Gender Motivated Violence Act Takes A Beating By The Supreme Court's New Commerce Clause Jurisprudence, Jodi Fowler Jayne

Oklahoma Law Review

No abstract provided.

Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

I begin this Essay by identifying some problems with conducting an empirical inquiry into Congress's performance in constitutional matters. I argue that there is actually only a small set of issues for which we have a reasonably clean record to evaluate. With the problems I have identified in the background, I then examine some aspects of Congress's performance in the impeachment of President William J. Clinton and, more briefly, some aspects of its response to a presidential military initiative taken without formal prior congressional endorsement. I conclude that Congress's performance in the impeachment, however flawed, was reasonably good, and that …

Legislative Constitutional Interpretation, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and …

The Original Meaning Of The Commerce Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …

The Court Should Have Remained Silent: Why The Court Erred In Deciding Dickerson V. United States, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Supreme Court 2000-2001 Term: First Amendment Cases, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Against Sovereign Immunity, Erwin Chemerinsky

Faculty Scholarship

In recent years, the Supreme Court has substantially expanded the scope of state sovereign immunity. These decisions provide an important occasion for a reconsideration of the entire doctrine of sovereign immunity. This article argues that sovereign immunity is an anachronistic concept, derived from long discredited royal prerogatives, and that it is inconsistent with basic principles of the American legal system. Sovereign immunity is justified neither by history nor, more importantly, by functional considerations. Sovereign immunity is inconsistent with fundamental constitutional requirements such as the supremacy of the Constitution and due process of law. This article concludes that sovereign immunity, for …

Getting Beyond Formalism In Constitutional Law: Constitutional Theory Matters, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Institutionalizing Constitutional Interpretation, Jack Knight

Faculty Scholarship

When a constituent assembly or other constitution-making body convenes in order to draft a constitution, the members of that assembly face a complex task. Their main goal is to agree on a constitution that will serve as the basis for a government for the present and, presumably, future generations. The constitution must establish a framework for the administration of government as well as enumerate the principles that will govern the relationship between the government and the citizenry. This is essentially a process of creating political institutions that will structure the behavior of the members of that society, a set of …

Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova

Faculty Scholarship

No abstract provided.

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Ten Lessons Our Constitutional Experience Can Teach Us About The Puzzle Of Animal Rights: The Work Of Steven M. Wise, Laurence H. Tribe

Animal Law Review

No abstract provided.

The Costs Of International Human Rights Litigation, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Deposing The "Tyranny Of Extroverts": Collaborative Learning In The Traditional Classroom Format, Elizabeth A. Reilly

Journal of Legal Education

No abstract provided.