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The Shrinking Constitution Of Settlement, David E. Pozen 2020 Columbia Law School

The Shrinking Constitution Of Settlement, David E. Pozen

Faculty Scholarship

Professor Sanford Levinson has famously distinguished between the "Constitution of Settlement" and the "Constitution of Conversation." The former comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation. The latter comprises those aspects that are subject to ongoing litigation and debate. Although Americans tend to fixate on the Constitution of Conversation, Levinson argues that much of what ails our republic is attributable, at least in part, to the grossly undemocratic and "decidedly nonadaptive" Constitution of Settlement.

This Article, prepared for a symposium on Levinson's coauthored book Democracy and Dysfunction, explains that the Constitution of …


Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow 2020 University of Michigan Law School

Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow

Michigan Law Review

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …


Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters 2020 Penn State Law - University Park

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …


The Water Fountain—A True Story, Teresa Reid 2020 University of Florida Levin College of Law

The Water Fountain—A True Story, Teresa Reid

University of Florida Journal of Law & Public Policy

No abstract provided.


Rap As A Proxy For Blackness: How The Prosecution Of Rap Lyrics Continues To Unconstitutionally Restrict Free Speech Rights, Austin Vining 2020 University of Florida Levin College of Law

Rap As A Proxy For Blackness: How The Prosecution Of Rap Lyrics Continues To Unconstitutionally Restrict Free Speech Rights, Austin Vining

University of Florida Journal of Law & Public Policy

No abstract provided.


Black Lives Matter: Trayvon Martin, The Abolition Of Juvenile Justice And #Blackyouthmatter, Nancy E. Dowd 2020 University of Florida Levin College of Law

Black Lives Matter: Trayvon Martin, The Abolition Of Juvenile Justice And #Blackyouthmatter, Nancy E. Dowd

University of Florida Journal of Law & Public Policy

No abstract provided.


The Dog Walker, The Birdwatcher And Racial Voice: The Manifest Need To Punish Racial Hoaxes, Katheryn Russell-Brown 2020 University of Florida Levin College of Law

The Dog Walker, The Birdwatcher And Racial Voice: The Manifest Need To Punish Racial Hoaxes, Katheryn Russell-Brown

University of Florida Journal of Law & Public Policy

No abstract provided.


From Authoritarian Police State To Black-Inclusive Democracy, Melody R. Webb 2020 George Washington University Law School

From Authoritarian Police State To Black-Inclusive Democracy, Melody R. Webb

University of Florida Journal of Law & Public Policy

No abstract provided.


The Law School Curriculum And The Movement For Black Lives, Teri A. McMurtry-Chubb 2020 University of Illnois Chicago Law School

The Law School Curriculum And The Movement For Black Lives, Teri A. Mcmurtry-Chubb

University of Florida Journal of Law & Public Policy

No abstract provided.


White Privilege: What It Is, What It Is Not, And How It Shapes American Discussions Of Policing And The Historical Figures We Honor, Neil H. Buchanan 2020 University of Florida Levin College of Law

White Privilege: What It Is, What It Is Not, And How It Shapes American Discussions Of Policing And The Historical Figures We Honor, Neil H. Buchanan

University of Florida Journal of Law & Public Policy

No abstract provided.


Don't Make A Run For It: Rethinking Illinois V. Wardlow In Light Of Police Shootings And The Nature Of Reasonable Suspicion, Edith Perez 2020 University of Florida Levin College of Law

Don't Make A Run For It: Rethinking Illinois V. Wardlow In Light Of Police Shootings And The Nature Of Reasonable Suspicion, Edith Perez

University of Florida Journal of Law & Public Policy

No abstract provided.


Finding A New Path: Using The Fifteenth Amendment To Protect The Voting Rights Of Returning Citizens, Ebony Love 2020 University of Florida Levin College of Law

Finding A New Path: Using The Fifteenth Amendment To Protect The Voting Rights Of Returning Citizens, Ebony Love

University of Florida Journal of Law & Public Policy

No abstract provided.


Do Black Lawyers Matter To The Legal Profession?: Applying An Antiracism Paradigm To Eliminate Barriers To Licensure For Future Black Lawyers, DeShun Harris 2020 University of Memphis Cecil C. Humphreys School of Law

Do Black Lawyers Matter To The Legal Profession?: Applying An Antiracism Paradigm To Eliminate Barriers To Licensure For Future Black Lawyers, Deshun Harris

University of Florida Journal of Law & Public Policy

No abstract provided.


View Corridors, Access, And Belonging In The Contested City: Vancouver’S Protected View Cones, The Urban Commons, Protest, And Decisionmaking For Sustainable Urban Development And The Management Of A City’S Public Assets, Sara Gwendolyn Ross 2020 Dalhousie University Schulich School of Law

View Corridors, Access, And Belonging In The Contested City: Vancouver’S Protected View Cones, The Urban Commons, Protest, And Decisionmaking For Sustainable Urban Development And The Management Of A City’S Public Assets, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

Majestic views of mountains, sky, and sea are essential components of the visual and experiential identity of Vancouver, Canada. The experience of these vistas supplements other urban realities, such as suffocating living expenses and inequality. This Article explores a recent example of urban contestation over Vancouver’s view corridors as a shared public resource and public asset. As this Article explores, exclusion from access to public assets that provide meaning to daily life — such as the mountain views in question — damage an urban citizen’s sense of identity and belonging in a city through a hierarchical experience of access and …


War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman 2020 Tulane University Law School

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …


From Public Health To Public Wealth: The Case For Economic Justice, Barbara L. Atwell 2020 Pace University

From Public Health To Public Wealth: The Case For Economic Justice, Barbara L. Atwell

Kentucky Law Journal

No abstract provided.


Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su 2020 Columbia Law School

Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su

Faculty Scholarship

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the full capacity to …


For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt 2020 Columbia Law School

For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt

Faculty Scholarship

In hindsight, the term "capitalism" was always a misnomer, coined paradoxically by its critics in the nineteenth century. The term misleadingly suggests that the existence of capital produces a unique economic system or that capital itself is governed by economic laws. But that's an illusion. In truth, we do not live today in a system in which capital dictates our economic circumstances. Instead, we live under the tyranny of what I would call "tournament dirigisme": a type of state-directed gladiator sport where our political leaders bestow spoils on the wealthy, privileged elite.

We need to displace this tournament dirigisme with …


The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey 2020 Allard School of Law at the University of British Columbia

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

All Faculty Publications

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …


Private Law Remedies And Public Law Standards: An Awkward Statutory Intrusion Into Tort Liability Of Public Authorities, Margaret Allars 2020 Sydney Law School

Private Law Remedies And Public Law Standards: An Awkward Statutory Intrusion Into Tort Liability Of Public Authorities, Margaret Allars

FIU Law Review

No abstract provided.


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