Jurisprudence Commons^™

Beyond Formalist Sovereignty: Who Can Represent "We The People Of The United States" Today?, David Chang

University of Richmond Law Review

No abstract provided.

Constitutionalism: A Skeptical View, Jeremy Waldron, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder

St. Mary's Law Journal

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Faculty Scholarship

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

Guarding The Guardians: Judges' Rights And Virginia's Judicial Inquiry And Review Commission, Jeffrey D. Mcmahan Jr.

University of Richmond Law Review

No abstract provided.

Equality In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

University of Richmond Law Review

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone's preferred moral vision for the limits, and compromises, that are implicit in and intended by the Constitution's text. He argues, moreover, that we can largely harmonizethe variousgoals of our constitutionalsystem by taking rights se- riously and by understanding that securing rights does not ex-haustthe Constitution'spurposes.

Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers

University of Richmond Law Review

No abstract provided.

The Constitution Of Terror: Big Lies, Backlash Jurisprudence, And The Rule Of Law In The United States Today, Francisco Valdes

Nevada Law Journal

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Faculty Scholarship

This essay advances a formalist conception of constitutional stare decisis. I shall argue that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework - a revival of formalist ideas in legal theory that I shall call "neoformalism" to distinguish my view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, we set the stage …

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

ExpressO

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia’s “textualist” philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven’s “Eroica” symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot

St. Mary's Law Journal

There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …

Effective Alternatives To Causes Of Action Barred By The Eleventh Amendment, Jesse H. Choper, John C. Yoo

NYLS Law Review

No abstract provided.

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls "neoformalism" to distinguish his view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by …

Popular? Constitutionalism?, Larry Alexander, Lawrence B. Solum

Faculty Scholarship

Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, …

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

Sacred Visions Of Law, Robert Tsai

Scholarly Articles in Law Reviews & Journals

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

ExpressO

“The Aretaic Turn in Constitutional Theory” argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators.

Part I, “The Most Dysfunctional Branch,” advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, “Institutionalism and Constitutional Interpretation,” engages Cass Sunstein …

The Constitution At The Threshold Of Life And Death: A Suggested Approach To Accommodate An Interest In Life And A Right To Die, Michael P. Allen

American University Law Review

In the past fifteen years, the United States Supreme Court has decided three cases in which it tentatively began to explore what the United States Constitution has to say about issues that are popularly described as the "right to die." In this article, I suggest that the current state of constitutional analysis does not provide for an effective mechanism for securing an individual's "right to die," at least not without undervaluing a state's interest in the preservation of human life should a state choose to take such a position. In the article, I suggest that it is possible to adopt …

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

Response To State Action And A New Birth Of Freedom, Robin West

Georgetown Law Faculty Publications and Other Works

I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

Judicial Review And International Law, Michel Troper

San Diego International Law Journal

According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.