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Full-Text Articles in Law

The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein Jan 2024

The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein

Touro Law Review

Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. …


Lost In The Thicket, Brad Snyder Jan 2024

Lost In The Thicket, Brad Snyder

Touro Law Review

As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.


Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes Jan 2024

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …


Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman Aug 2023

Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman

Life of the Law School (1993- )

No abstract provided.


A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq Jan 2023

A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq

Journal of Race, Gender, and Ethnicity

This article will discuss in detail exactly how the court is illegitimate and makes decisions that are illegitimate, using examples from the October 2021 term. It will also explain why action needs to be taken immediately to reign in this run-away Court to restore public trust. As discussed herein, we cannot sit by and patiently wait for the Court to right itself over time because there are important issues on the current docket, such as race-conscious admissions policies of colleges and universities to ensure student bodies are diverse as future leaders are prepared to live and work in a diverse …


Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos Jan 2022

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …


Why Judges Can't Save Democracy, Robert L. Tsai Jan 2022

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,1 David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …


Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law Jul 2021

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams Mar 2021

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …


The Constitution And Democracy In Troubled Times, John M. Greabe Feb 2021

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?


Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey Oct 2020

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …


Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin Jul 2020

Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin

Pepperdine Law Review

Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …


Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai Jan 2019

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …


Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall May 2018

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall

Pepperdine Law Review

Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. …


Newsroom: 'You Can't Help Being In Awe' 1-30-2018, Michael M. Bowden, Edward Fitzpatrick Jan 2018

Newsroom: 'You Can't Help Being In Awe' 1-30-2018, Michael M. Bowden, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.


Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua Nov 2017

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Makau Mutua

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.


Sunlight And Shadows: Louis D. Brandeis On Privacy, Publicity, And Free Expression In American Democracy, Erin Coyle Jan 2017

Sunlight And Shadows: Louis D. Brandeis On Privacy, Publicity, And Free Expression In American Democracy, Erin Coyle

Touro Law Review

No abstract provided.


Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden Feb 2016

Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Rights Without Remedies, Adam Lamparello Nov 2015

Rights Without Remedies, Adam Lamparello

Adam Lamparello

The Court should modify the standing doctrine in some contexts for the same reason that, in Shelby County, it invalidated two provisions of the Voting Rights Act: the legislature cannot and will not fix the problem. No legal doctrine should be applied without examining whether elected representatives are capable of remedying specific harms and accounting for the relative unfairness in democratic governance. When the traditional standing requirements are rigidly applied without considering these factors, the Court undermines the separation of powers and prevents sound judicial decision-making. In essence, rigid application of the standing doctrine sends a message to litigants …


With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello Aug 2014

With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello

Adam Lamparello

Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power …


Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait Jan 2013

Constructing Courts: Architecture, The Ideology Of Judging, And The Public Sphere, Allison Anna Tait

Law Faculty Publications

In several countries, governments have embarked on major building expansion programs for their judiciaries. The new buildings posit the courtroom as their center and the judge as that room’s pivot. These contemporary projects follow the didactic path laid out in Medieval and Renaissance town halls, which repeatedly deployed symbolism in efforts to shape norms. Dramatic depictions then reminded judges to be loyal subjects of the state. In contrast, modern buildings narrate not only the independence of judges but also the dominion of judges, insulated from the state. The significant allocation of public funds reflects the prestige accorded to courts by …


Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz Jan 2013

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …


Of Law And The Revolution, Lama Abu-Odeh Jan 2013

Of Law And The Revolution, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The Egyptian revolution is proving to be a very legal one. That is not to say that the revolution’s demands have been legalized, nor that Egypt’s law has been revolutionized, rather, the forces that have come to the fore since the toppling of Mubarak in Feb 2011 have chosen law as the privileged form through which to bargain with each other. The density of the legal back and fro has been overwhelming: constitutional amendments, constitutional supplementary declarations, parliamentary laws, legislative amendments, military decrees, court trials, constitutional court decisions overturning laws passed, conflicting decisions from various courts, presidential decrees, emergency laws …


"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown Oct 2012

"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown

Pepperdine Law Review

No abstract provided.


The Myth Of The Written Constitution, Todd E. Pettys Jan 2009

The Myth Of The Written Constitution, Todd E. Pettys

Todd E. Pettys

Many Americans have long subscribed to what this Article calls the myth of the written constitution—the claim that the nation’s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans’ attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to …


Prologue To District Of Columbia Democracy And The Third Branch Of Government, John W. Nields, Timothy J. May Dec 2008

Prologue To District Of Columbia Democracy And The Third Branch Of Government, John W. Nields, Timothy J. May

University of the District of Columbia Law Review

Why does the President of the United States appoint the judges of the District of Columbia's local court system? Why is the District of Columbia's local court system funded and overseen by the United States Congress? Why does the United States Attorney for the District of Columbia and not the Attorney General for the District of Columbia function as a local prosecutor, prosecuting most D.C. Code crimes in the District of Columbia's courts? The four essays which follow this introduction explore the rich history behind these unusual structural features of the District of Columbia government; they present the arguments for …


Comments On Who Appoints D.C. Judges, Daniel A. Rezneck Dec 2008

Comments On Who Appoints D.C. Judges, Daniel A. Rezneck

University of the District of Columbia Law Review

No abstract provided.


When Should Original Meanings Matter?, Richard A. Primus Jan 2008

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.


Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii Jan 2005

Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.


Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive?: What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos Vargas Jan 2004

Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive?: What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos Vargas

Michigan Journal of Race and Law

This Article concludes that political dialogue engendered by controversial minority judicial nominations, like those of Miguel Estrada and Janice Rogers Brown, could be an avenue to educating the polity as to why it is important to achieve greater minority representation on the bench. The pluralistic process-based model of judging advocates that a critical mass of diverse judges be achieved, not that the minority judges be liberal rather than conservative, communitarian rather than individualist, or Democrat rather than Republican. The goal is that there be a critical mass of minority judges on benches that make decisions as a group, like circuit …