Constitutional Hypocrisy,
2011
Georgetown University Law Center
Constitutional Hypocrisy, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
My legal realist inclinations leave me largely agnostic about the particular provisions that happen to be included in any particular constitution. That is because both written and unwritten constitutions seem more likely to reflect than to prescribe the normative values of the cultures that adopt them. As a result, the substantive, structural, and procedural provisions of the present United States Constitution seem perfectly adequate to promote justice-at least in a culture that is genuinely committed to the cause of justice. No constitution is likely to promote justice in a culture that lacks such a commitment. Nevertheless, there is one change …
Regulating Morality Through The Common Law And Exclusionary Zoning,
2011
The Catholic University of America, Columbus School of Law
Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey
Scholarly Articles
The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, …
Differentiating The Federal Circuit,
2011
The Catholic University of America, Columbus School of Law
Differentiating The Federal Circuit, Elizabeth I. Winston
Scholarly Articles
In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart …
The Black Poor, Black Elites, And America's Prisons,
2011
Georgetown University Law Center
The Black Poor, Black Elites, And America's Prisons, James Forman Jr.
Cardozo Law Review
No abstract provided.
Is The "Post" In Post-Racial The "Blind" In Colorblind?,
2011
University of California, Berkeley
Is The "Post" In Post-Racial The "Blind" In Colorblind?, Ian F. Haney López
Cardozo Law Review
No abstract provided.
Judicial Activism And The Interpretation Of The Voting Rights Act,
2011
Indiana University Maurer School of Law
Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer
Cardozo Law Review
No abstract provided.
The Four Pillars Of Constitutional Doctrine,
2011
Vanderbilt University
The Four Pillars Of Constitutional Doctrine, Suzanna Sherry
Cardozo Law Review
No abstract provided.
A Club Of Incumbents? The African Union And Coups D'Etat,
2011
Vanderbilt University Law School
A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe
Vanderbilt Journal of Transnational Law
This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even …
Epilog: Foreign Sovereign Immunity At Home And Abroad,
2011
Vanderbilt University Law School
Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth
Vanderbilt Journal of Transnational Law
Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …
The Origins And Limits Of Originalism: A Comparative Study,
2011
Vanderbilt University Law School
The Origins And Limits Of Originalism: A Comparative Study, Ozan O. Varol
Vanderbilt Journal of Transnational Law
In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader …
Due Process Rights And The Targeted Killing Of Suspected Terrorists,
2011
Vanderbilt University Law School
Due Process Rights And The Targeted Killing Of Suspected Terrorists, Benjamin Mckelvey
Vanderbilt Journal of Transnational Law
The Central Intelligence Agency (CIA), with the approval of the Obama Administration, conducts targeted killings of individual suspected terrorists. These killings have significantly increased since the Iraq war and are now a central component of U.S. counterterrorism strategy. The targeted killing program consists mainly of missile strikes from Predator drones, which are unmanned aerial vehicles operated by the CIA. In May 2010, President Obama's National Security Council approved the targeted killing of Anwar al-Aulaqi, a U.S. citizen and suspected al-Qaeda senior leader believed to be hiding in Yemen. As the first American targeted for extrajudicial lethal force, Aulaqi's situation quickly …
All Things In Proportion - American Rights Review And The Problem Of Balancing,
2011
Penn State Law
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Faculty Scholarship
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …
Proposing Constitutional Amendments By Convention: Rules For Governing The Process,
2011
University of Montana School of Law
Proposing Constitutional Amendments By Convention: Rules For Governing The Process, Robert G. Natelson
Faculty Law Review Articles
Much of the mystery surrounding the Constitution's state-application-and-convention amendment process is unnecessary as history and case law enable us to resolve most questions. This article is the first in legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the article is objective exposition rather tan advocacy or special pleading.
The State-Application-And-Convention Method Of Amending The Constitution: The Founding Era Vision,
2011
University of Montana School of Law
The State-Application-And-Convention Method Of Amending The Constitution: The Founding Era Vision, Robert G. Natelson
Faculty Law Review Articles
No abstract provided.
When The Evil Day Comes, Will Title Vii's Disparate Impact Provision Be Narrowly Tailored To Survive An Equal Protection Clause Challenge,
2011
University of Oklahoma College of Law
When The Evil Day Comes, Will Title Vii's Disparate Impact Provision Be Narrowly Tailored To Survive An Equal Protection Clause Challenge, Eang Ngov
Faculty Articles
"The road to hell is paved with good intentions." Employers must be careful about the intentional and unintentional effect of their employment practices, even when acting with good motive. Title VII’s disparate impact provision holds employers liable for employment practices that cause an adverse impact on racial groups, even when the employment practice applies equally to all groups and was not implemented to disadvantage a particular group. A prima facie case of disparate impact can arise solely based on numbers - a comparison between the rate at which one racial group passes a test or is selected for hiring or …
The Timely Demise Of The Fourth Amendment Third Party Doctrine,
2011
University of Oklahoma College of Law
The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson
Faculty Articles
In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …
Looking For A Few Good Philosopher Kings: Political Gerrymandering As A Question Of Institutional Competence,
2011
Indiana University Maurer School of Law
Looking For A Few Good Philosopher Kings: Political Gerrymandering As A Question Of Institutional Competence, Luis Fuentes-Rohwer
Articles by Maurer Faculty
The redistricting season is about to begin in full swing, and with it will come renewed calls for the federal courts, and particularly the U. S. Supreme Court, to aggressively review the work of the political branches. This is an intriguing puzzle. Since the early 1960’s, the federal courts have regulated questions of politics aggressively. They have done this even in the face of difficult questions of political representation. The courts have taken sides, to be sure, but these can only be described as acts of volition and will, not constitutional law. The leading case is Reynolds v. Sims. This …
Secular Not Secularist America,
2011
University of Oklahoma College of Law
Secular Not Secularist America, Michael A. Scaperlanda
Faculty Articles
No abstract provided.
Is Health Care Reform Unconstitutional?,
2011
Georgetown University Law Center
Is Health Care Reform Unconstitutional?, David Cole
Georgetown Law Faculty Publications and Other Works
No abstract provided.
The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far,
2011
Georgetown University Law Center
The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning
Georgetown Law Faculty Publications and Other Works
Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the …
