Constitutional Law Commons^™

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Osgoode Hall Law Journal

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …

Judicial Review And American Constitutional Exceptionalism, Miguel Schor

Osgoode Hall Law Journal

This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it …

Modern Constitutional Democracy And Imperialism, James Tully

Osgoode Hall Law Journal

To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which …

Rewriting Brown, Resurrecting Plessy, James E. Fleming

Faculty Scholarship

It is an honor and a pleasure to ponder Cooper v. AaronI and the legacy of Brown v. Board of Education2 in general and to respond to David A. Strauss's wise and insightful Childress Lecture3 in particular. I want to address three topics. The first two are encapsulated in my title: Rewriting Brown, Resurrecting Plessy. I'll examine the widespread phenomenon of "rewriting Brown." And I'll document what I shall call "resurrecting Plessy": the phenomenon, evident in both liberal and conservative scholarship and opinions, of charging one's opponents with repeating the mistakes of Plessy v. Ferguson.4 I'll illustrate the liberal version …

June 28, 2008: The Kennedy Court On Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Kennedy Court on Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 26, 2008: Something Incoherent About Barack Obama, Bruce Ledewitz

Hallowed Secularism

Blog post, “Something Incoherent About Barack Obama“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 24, 2008: Sacred Science, Bruce Ledewitz

Hallowed Secularism

Blog post, “Sacred Science“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

An Assessment Of The Law School Climate For Glbt Students, Kelly Strader, Brietta R. Clark, Robin C. Ingli, Elizabeth Kransberger, Lawrence C. Levine, William D. Perez

Journal of Legal Education

No abstract provided.

June 21, 2008: The "I Believe" Licene Plates, Bruce Ledewitz

Hallowed Secularism

Blog post, The "I Believe" Licene Plates “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 18, 2008: Religion And The Public Square, Bruce Ledewitz

Hallowed Secularism

Blog post, “Religion and the Public Square “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Altria Group, Inc. V. Good: Brief Of Amicus Curiae Constitutional And Administrative Law Scholars In Support Of Respondents, Nina A. Mendelson

Appellate Briefs

Amici are law professors who teach and write in the areas of constitutional and administrative law and legislation.

Each of us has written on the general question of federal preemption of state law, and many of us have focused on the particular question of preemption under federal regulatory statutes that delegate important roles to administrative agencies. This brief is an effort to bring that scholarship to bear on the particular case now before the Court.

Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas

NULR Online

No abstract provided.

June 14, 2008: Senator Obama's Prayer Group, Bruce Ledewitz

Hallowed Secularism

Blog post, “Senator Obama's Prayer Group“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 12, 2008: The New Face Of Islam, Bruce Ledewitz

Hallowed Secularism

Blog post, “The New Face of Islam “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A V. State Of Israel, Dorit Beinisch, Edmond E. Levy, Ayala Procaccia

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

Appeals challenging the decisions of the District Court who upheld the legality of the appellants’ arrests under the Internment of Unlawful Combatants Law 5762-2002 (hereinafter: the Act.) We are concerned with the private case of the appellants, residents of the Gaza Strip, who in 2002-2003 were arrested in an administrative arrest under the security legislation that applies in the strip, when as a result …

June 9, 2008: More On Michael Hampson, Bruce Ledewitz

Hallowed Secularism

Blog post, “More on Michael Hampson “ is a discussion including politics, theology and the law in relation to religion and public life the American democracy.

June 7, 2008: Michael Hampson: God Without God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Michael Hampson: God Without God “ is a discussion including politics, theology and the law in relation to religion and public life the American democracy.

June 5, 2008: Liberal Religion And Hallowed Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Liberal Religion and Hallowed Secularism“ is a discussion including politics, theology and the law in relation to religion and public life the American democracy.

June 2, 2008: Austin Dacey On Islam, Bruce Ledewitz

Hallowed Secularism

Blog post, “Austin Dacey “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.

Working Paper Series

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Enacting A Reasonable Federal Shield Law: A Reply To Professors Clymer And Eliason, James Thomas Tucker, Wermiel

American University Law Review

No abstract provided.

Deep Background: Journalists, Sources, And The Perils Of Leaking, William E. Lee

American University Law Review

No abstract provided.

The Problems With The Reporter's Privilege, Eliason D. Eliason

American University Law Review

No abstract provided.

The Espionage Act And National Security Whistleblowing After Garcetti, Stephen I. Vladeck

American University Law Review

Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies - and to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be? As this Essay suggests, because of the broad language …

Transcript: Left Out In The Cold? The Chilling Of Speech, Association, And The Press In Post-9/11 America , American University Law Review

American University Law Review

No abstract provided.

Reforming Fourth Amendment Privacy Doctrine, Jim Harper

American University Law Review

No abstract provided.

Performing Art: National Endowment For The Arts V. Finley, Randall P. Bezanson

Federal Communications Law Journal

In this modified version of a chapter in his forthcoming book, ART AND FREEDOM OF SPEECH (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The essay uses the Finley v. NEA case, and specifically its discussion of Finley's performance art, to critique the Supreme Court's very approach to the Finley case, and to view the issues from the perspective of art, artistic freedom, and the Supreme Court's role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

Antitrust Language Barriers: First Amendment Constraints On Defining An Antitrust Market By A Broadcast's Language, And Its Implications For Audiences, Competition, And Democracy, Catherine J.K. Sandoval

Federal Communications Law Journal

This Article explores whether the language of a broadcaster's program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice ("DOJ") defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is …