The Invisible Constitution. by Laurence H
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The Guarantee of Republican Government: Proposals for Judicial Review
COMMENTS The Guarantee of Republican Government: Proposals for Judicial Review The Constitution provides that "[t]he United States shall guarantee to every State in this Union a Republican form of gov- ernment."' The Supreme Court generally has held that only Con- gress and the President, and not the federal judiciary, can enforce that guarantee-on the ground that all issues under the guarantee clause raise nonjusticiable "political questions. '2 But several rul- ings in state and lower federal courts, like some older Supreme Court opinions, have disregarded that per se rule and decided guarantee clause claims on the merits.3 The anomalous result is that a duty entrusted to "the United States" is exercised in large part by state courts.4 U.S. Const. art. IV, § 4, cl. 1. For the background and the history of the clause, see William M. Wiecek, The Guarantee Clause of the U.S. Constitution (1972); Arthur E. Bn- field, The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude, 46 Minn. L. Rev. 513 (1962). 2 See, e.g., Baker v. Carr, 369 U.S. 186 (1962); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937); Ohio v. Akron Park Dist., 281 U.S. 74 (1930); Davis v. Ohio, 241 U.S. 565 (1916); Pacific Telephone v. Oregon, 223 U.S. 118 (1912); Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 (1900). On "political questions" generally, see, e.g., Baker, 369 U.S. at 208-26 (discussing cate- gories of "political questions" and factors underlying them); Laurence H. -
Houston Law Review Address
WEISBERGC11.DOC 3/28/2002 12:45 PM HOUSTON LAW REVIEW ADDRESS VALUES, VIOLENCE, AND THE SECOND AMENDMENT: AMERICAN CHARACTER, CONSTITUTIONALISM, AND CRIME Robert Weisberg* TABLE OF CONTENTS I. INTRODUCTION ........................................................................2 II. “EXCEPTIONALISM” ..................................................................9 III. NEW SECOND AMENDMENT ISSUES .......................................11 IV. VIOLENCE HISTORY ...............................................................17 V. EXPLANATORY THEMES ABOUT AMERICAN VIOLENCE ..........21 A. “Cultural Explanations” ................................................21 1. The Frontier............................................................21 2. Vigilante America ...................................................23 3. The South................................................................28 4. Race.........................................................................34 B. The Anti-Cultural Explanation: Gun Prevalence..........35 * Edwin E. Huddlenson, Jr., Professor of Law, Stanford University. J.D. 1979, Stanford University; Ph.D. 1971, Harvard University; A.M. 1967, Harvard University; B.A. 1966, City College of New York. 1 WEISBERGC11.DOC 3/28/2002 12:45 PM 2 HOUSTON LAW REVIEW [39:1 C. The Super-Cultural Explanation: Political Equilibrium.....................................................36 VI. THE CHALLENGES OF CONSISTENCY......................................38 A. Pro-Gun Consistency......................................................38 -
A Hidden History of Affirmative Obligation Patrick O
University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2007 A Hidden History of Affirmative Obligation Patrick O. Gudridge University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Constitutional Law Commons Recommended Citation Patrick O. Gudridge, A Hidden History of Affirmative Obligation, 42 Tulsa L. Rev. 857 (2007). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. A HIDDEN HISTORY OF AFFIRMATIVE OBLIGATION Patrick 0. Gudridge I. INTRODUCTION This contribution to the Symposium was supposed to be titled "The Age of Aquarius?"' In 1977 Laurence Tribe and Frank Michelman published articles arguing to the same conclusion: Initial impressions notwithstanding, the United States Supreme Court decision in National League of Cities v. Usery2 is best understood as recognizing and protecting-however implicitly or obliquely-constitutional obligations requiring states to assure their residents certain minimum services. 3 Prominent initial reactions to these articles were not entirely positive-putting it mildly.4 It seemed bizarre then-it may still seem bizarre now-to suggest that the National League of Cities majority opinion, the work of Justice William Rehnquist, pointed toward a jurisprudence of affirmative obligation, however much Tribe and Michelman wished for that jurisprudence to prevail. -
Economics As Judges: a Selective, Annotated Bibliography
NOTE ECONOMISTS AS JUDGES: A SELECTIVE, ANNOTATED BIBLIOGRAPHY JANET SINDER* This bibliography focuses on the role of judges in applying the values of law and economics, particularly the role of those judges trained in economics. It also includes articles on how economics can be used by judges in certain cases, even if a judge does not have a background in economics. Finally, this bibliography contains articles on whether economic values should be considered and promoted by the judicial system. Ackerman, Bruce A. "Law, Economics, and the Problem of Legal Culture." Duke Law Journal (1986): 929-47. Ackerman considers how the law and economics movement might be changing the language used by lawyers, and whether this will then change the outcomes of cases. The article reaches no conclusions, rather it poses the questions for consideration. Ackerman mentions that his personal thoughts on the subject are contained in his book, Reconstructing American Law. Cambridge, Mass.: Harvard University Press, 1984. Becker, Edward R. "The Uses of 'Law and Economics' by Judges." Journal of Legal Education 33 (1983): 306-10. Judge Becker discusses the areas to which he believes law and economics scholars have paid too little attention: evidence by economists at trial and the economics of judicial administration. He argues that lawyers need to be trained to present law and economics analysis to the court in appropriate cases. He also considers ways that this analysis should be used by lawyers, and gives a judge's perspective on what factors will influence decisions. Breyer, Stephen. "Economics for Lawyers and Judges." Journal of Legal Education 33 (1983): 294-305. -
Book Review: Outsider Voices on Gun and the Constitution; a Book Review Of: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876
University of Minnesota Law School Scholarship Repository Constitutional Commentary 2000 Book Review: Outsider Voices on Gun and the Constitution; a Book Review Of: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876. by Stephen P. Halbrook Nelson Lund Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Lund, Nelson, "Book Review: Outsider Voices on Gun and the Constitution; a Book Review Of: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876. by Stephen P. Halbrook" (2000). Constitutional Commentary. 809. https://scholarship.law.umn.edu/concomm/809 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. 2000] BOOK REVIEWS 701 eignty. It is, instead, based on the practical plausibility of the idea that in our contemporary democracy, rights and politics go hand in hand. OUTSIDER VOICES ON GUNS AND THE CONSTITUTION FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866-1876. By Stephen P. Halbrook. 1 Westport, Ct. Praeger Publishers. 1998. Pp. xiii, 230. Hardcover. $55.00 Nelson Lund2 If there is any good justification for the economic cartel in legal services, perhaps it lies in our aspirations as a learned pro fession. In recent years, those aspirations-or pretensions have been looking insecure. On one side, the practice of law has become harder to distinguish from other business ventures, for it is increasingly specialized and ever more openly oriented toward profit maximization. -
Character, Competency, and Constitutionalism: Did the Bork Nomination Represent a Fundamental Shift in Onfirc Mation Criteria? Frank Guliuzza III
Marquette Law Review Volume 75 Article 5 Issue 2 Winter 1992 Character, Competency, and Constitutionalism: Did the Bork Nomination Represent a Fundamental Shift in onfirC mation Criteria? Frank Guliuzza III Daniel J. Reagan David M. Barrett Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Frank Guliuzza III, Daniel J. Reagan, and David M. Barrett, Character, Competency, and Constitutionalism: Did the Bork Nomination Represent a Fundamental Shift ni Confirmation Criteria?, 75 Marq. L. Rev. 409 (1992). Available at: http://scholarship.law.marquette.edu/mulr/vol75/iss2/5 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. CHARACTER, COMPETENCY, AND CONSTITUTIONALISM: DID THE BORK NOMINATION REPRESENT A FUNDAMENTAL SHIFT IN CONFIRMATION CRITERIA? BY FRANK GULIUZZA III,* DANIEL J. REAGAN,** DAVID M. BARRETr*** I. INTRODUCTION Some constitutional scholars contend that with the reelection of Ronald Reagan, and his political opponent's perception that he was in a solid posi- tion to fashion the Supreme Court in his own image, the nomination and confirmation process for nominees to the Supreme Court experienced a fun- damental transformation. These commentators argue that the Senate has altered the criteria by which it judges nominees to the Court, shifting its focus from nominees' personal character and professional competency to an emphasis upon their social and judicial philosophy-their "constitutional- ism." This shift from character and competency questions to constitution- alism concerns was most evident in the nomination, and the Senate's subsequent rejection, of Judge Robert Bork in 1987.1 Others disagree and claim that there has been no shift in confirmation criteria. -
Viewpoint Discrimination Marjorie Heins
Hastings Constitutional Law Quarterly Volume 24 Article 3 Number 1 Fall 1996 1-1-1996 Viewpoint Discrimination Marjorie Heins Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Marjorie Heins, Viewpoint Discrimination, 24 Hastings Const. L.Q. 99 (1996). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol24/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Viewpoint Discrimination By MARJORIE HEINS* Table of Contents I. The Semantics of Suppression .......................... 105 A. Viewpoint Neutrality ................................ 105 B. Rules About Content ............................... 110 C. Political, Controversial, and Religious Speech ...... 115 II. Sex, Vulgarity, and Offensiveness ....................... 122 m. Government Benefits and Property ..................... 136 IV. Government Speech .................................... 150 V. Public Education: The Pico Paradox .................... 159 Conclusion ..................................................... 168 Introduction "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in poli- tics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."1 With these words, Jus- * Director, American Civil Liberties Union Arts Censorship Project; Senior Staff Counsel, ACLU Legal Department; J.D., Harvard University, 1978; author, SEx, SIN, AND BLASPHEMY: A GuIDE TO AMERICA'S CENSORSHIP WARS (1993). The author participated in several of the cases or controversies mentioned in this Article. -
The New Supreme Court Commentators: the Principled, the Political, and the Philosophical, 10 Hastings Const
Hastings Constitutional Law Quarterly Volume 10 Article 4 Number 2 Winter 1983 1-1-1983 The ewN Supreme Court Commentators: The Principled, the Political, and the Philosophical Laurence E. Wiseman Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Laurence E. Wiseman, The New Supreme Court Commentators: The Principled, the Political, and the Philosophical, 10 Hastings Const. L.Q. 315 (1983). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol10/iss2/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The New Supreme Court Commentators: The Principled, the Political, and the Philosophical By LAURENCE E. WISEMAN* Table of Contents Introduction .................................................... 317 I. The Background in Moral Philosophy ..................... 318 A. The Criticism of Utilitarianism ....................... 320 1. Bernard Williams ................................. 321 2. John Rawls ....................................... 322 3. Charles Fried ..................................... 323 4. Ronald Dworkin .................................. 325 5. Summary of Criticisms ........................... 325 B. New Foundations -
In Defense of Roe and Professor Tribe
Tulsa Law Review Volume 42 Issue 4 The Scholarship of Laurence Tribe Summer 2007 In Defense of Roe and Professor Tribe Erwin Chemerinsky Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Erwin Chemerinsky, In Defense of Roe and Professor Tribe, 42 Tulsa L. Rev. 833 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol42/iss4/4 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Chemerinsky: In Defense of Roe and Professor Tribe IN DEFENSE OF ROE AND PROFESSOR TRIBE Erwin Chemerinsky I. INTRODUCTION I first met Professor Tribe when he judged me in a college debate round at the National Debate Tournament in Annapolis, Maryland in 1973. Over the last 35 years, he has been my constitutional law professor, my mentor, and my friend. He is my role model in what I aspire to be as an academic, a lawyer, and an activist. It is truly a privilege and pleasure to write this article in his honor. In the same year I met Professor Tribe, he wrote the prestigious Foreword to the Harvard Law Review.1 To be sure, he had a momentous Term of the Supreme Court to write about and focused on two cases of lasting significance: Roe v. Wade2 and San Antonio Independent School District v. -
Access to the Justices' Papers
LAW LIBRARY JOURNAL Vol. 110:2 [2018-8] 185 186 LAW LIBRARY JOURNAL Vol. 110:2 [2018-8] The Justices’ Privacy Interests ........................................202 Supreme Court Clerks’ Privacy Interests ...............................206 Shifting From Privacy to Public Policy ................................207 Proposals for Improvement ............................................208 “Public Papers” as Public Property ....................................208 Congress Changes Ownership Status Only; Judicial Branch Works Out Details ....................................................209 Incentives for Complete Collections and Short Embargos. .210 Archive and Library Guidelines ......................................211 Conclusion . 211 Introduction ¶1 Following the unexpected death of Supreme Court Justice Antonin Scalia in early 2016,2 it quickly came to the attention of legal scholars that Justice Scalia had not designated a repository for his papers before his passing.3 No law governs the preservation of federal judges’ papers produced in the course of their work as employees of the United States.4 As a result, the fate of Scalia’s papers was left in the hands of his family, who were free to do virtually anything with them. Papers of other Supreme Court Justices have been destroyed, lost, or heavily restricted. We now know that the Scalia family has chosen Harvard Law Library as the repository for the papers, but they have placed restrictions on them that will delay access to many of the papers for an indeterminate (but likely not short) period based on the lifespans of Scalia’s colleagues. This delay will frustrate scholars and other research- ers, and it will hamper further insight into the Court at a time when it appears to be undergoing an ideological shift further to the right. Justice Scalia spent twenty- nine years on the Court participating in many decisions that have shaped modern American society and jurisprudence. -
Tribe on Proceduralism in Constitutional Theory
Tulsa Law Review Volume 42 Issue 4 The Scholarship of Laurence Tribe Summer 2007 The Not So Puzzling Persistence of the Futile Search: Tribe on Proceduralism in Constitutional Theory Frank I. Michelman Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Frank I. Michelman, The Not So Puzzling Persistence of the Futile Search: Tribe on Proceduralism in Constitutional Theory, 42 Tulsa L. Rev. 891 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol42/iss4/8 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Michelman: The Not So Puzzling Persistence of the Futile Search: Tribe on Pr THE NOT SO PUZZLING PERSISTENCE OF THE FUTILE SEARCH: TRIBE ON PROCEDURALISM IN CONSTITUTIONAL THEORY Frank I. Michelman* I. From me, just now, there can be no more fitting tribute to my friend and hugely admired colleague, Laurence Tribe, than a retrospect on his famous essay of 1980, "The Puzzling Persistence of Process-Based Constitutional Theories." 1 "Persistence," as I will call it for short, has the look of a pidce d'occasion-the occasion being, of course, the publication in 1980 of John Hart Ely's great work on constitutional theory, Democracy and Distrust. But there was more to it than that, or so I mean to suggest. Rejoining to Ely in "Persistence," -
The ALI Reporter Fall/Winter 2014
VOLUME 37 • NUMBER 1 FALL/WINTER 2014 The ReporterPublished By The American Law Institute DEDICATED TO CLARIFYING AND IMPROVING THE LAW Four New Projects to Begin in 2015 The work of The American Law Institute will grow significantly in 2015 with the launch of four new projects. In October, the ALI Council approved the commencement of work on three new Restatements of the Law—Conflict of Laws, Copyright, and Property—as well as a Principles of the Law project on Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations. The Institute will tackle the subject of conflicts for the third time, some 80 years after the original Restatement of Conflicts was published in 1934. The Restatement of the Law Third, Conflict of Laws, will eventually supersede the Restatement Second, Conflict of Laws, published in 1971 and partially revised in 1988. The Second Restatement’s “most significant relationship” analysis has been widely accepted by courts, but has also been criticized for its difficulty of administration. Like its predecessors, the new Restatement will cover choice of law, including related issues such as dépeçage and renvoi; judicial jurisdiction; and recognition and enforcement of judgments. The Reporter, Professor Kermit Roosevelt III of the University of Pennsylvania Law School, will be assisted by Associate Reporters Laura E. Little of Temple University Beasley School of Law and Clockwise from top left: Reporters Kermit Roosevelt III, Henry E. Smith, Christopher A. Whytock of the University of California, Irvine School Geoffrey P. Miller, and Christopher Jon Sprigman. of Law. continued on page 2 The President’s Letter A Giant Step for Simplicity The October Council meeting was notable for many reasons.