Constitutional Law Commons^™

The Democratic Deficit, Joseph Raz

Faculty Scholarship

Why democracy? Institutions of government and others must meet conditions of legitimacy. Why? and what are they? what are principles of legitimacy, like the principle of subsidiarity? and how does democracy fit in a theory of legitimacy? The paper surveys what it takes to be the seven most important advantages of democratic government: civil and political rights, more extensive opportunities for people to engage in public affairs, responsiveness to the expressed preferences of the people, stability, peaceful transfer of power, loyalty and solidarity. It then considers the role of legitimation in securing these advantages. These reflection lead to the question …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Scholarship

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first — the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than …

Citizens Of The State, Maeve Glass

Faculty Scholarship

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty …

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal …

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to …

The Search For An Egalitarian First Amendment, Jeremy K. Kessler, David E. Pozen

Faculty Scholarship

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a …

Introduction: Troubling Transparency, David E. Pozen, Michael Schudson

Faculty Scholarship

Transparency is a value in the ascendance. Across the globe, the past several decades have witnessed a spectacular explosion of legislative reforms and judicial decisions calling for greater disclosure about the workings of public institutions. Freedom of information laws have proliferated, claims of a constitutional or supra-constitutional "right to know" have become commonplace, and an international transparency lobby has emerged as a civil society powerhouse. Open government is seen today in many quarters as a foundation of, if not synonymous with, good government.

At the same time, a growing number of scholars, advocates, and regulators have begun to raise hard …

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …

Making Habeas Work: A Legal History, Eric M. Freedman

Hofstra Law Faculty Scholarship

A reconsideration of the writ of habeas corpus casts new light on a range of current issues

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account. Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from the …

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

Rethinking The Effects Of A Guilty Plea On The Right To Challenge One's Statute Of Conviction, Hannah Roberts

American University Journal of Gender, Social Policy & the Law

No abstract provided.