Vicki C. Jackson

Thurgood Marshall Professor of Constitutional Law

Areeda 327

617-496-0555

Assistant: Megan ONeil / 617-496-5392

Biography

Vicki C. Jackson, Thurgood Marshall Professor of Constitutional Law, writes and teaches about U.S. constitutional law and comparative constitutional law. She is the author of Constitutional Engagement in a Transnational Era (2010), and coauthor, with Mark Tushnet, of Comparative Constitutional Law (3d ed. 2014), a leading course book in the field. She has written on constitutional aspects of federalism, gender equality, election law, free speech, sovereign immunity, courts and judicial independence, methodological challenges in comparative constitutional law, and other topics. Her other books include Federalism (with Susan Low Bloch, coauthor) (2013), two edited collections, Federal Courts Stories (2010) (with Judith Resnik, co-editor), and Defining the Field of Constitutional Law (2002) (with Mark Tushnet, co-editor), and another course book, Inside the Supreme Court: The Institution and Its Procedures (2d ed., 2008) (with Susan Low Bloch and Thomas G. Krattenmaker). Her scholarly projects include normative conceptions of the role of elected representatives in a democracy; proportionality in constitutional law and interpretation; gender equality and the interaction of international and domestic law; and the co-evolution of the constitutionalization of international law and the internationalization of constitutional law. She is a member of the Executive Committee of the American Association of Law Schools (AALS), and has served on the Executive Committee of the International Association of Constitutional Law, on the Board of Managerial Trustees of the International Association of Women Judges, as Chair of the Federal Courts Section of the AALS, and on the D.C. Bar Board of Governors. She has also practiced law, in private practice, and as a government lawyer in the Office of Legal Counsel in the U.S. Department of Justice.

Areas of Interest

Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 8 (2015).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
First Amendment
,
Comparative Law
Type: Article
Abstract
Proportionality, accepted as a general principle of constitutional law by many countries, requires that government intrusions on freedoms be justified, that greater intrusions have stronger justifications, and that punishments reflect the relative severity of the offense. Proportionality as a doctrine developed by courts, as in Canada, has provided a stable methodological framework, promoting structured, transparent decisions even about closely contested constitutional values. Other benefits of proportionality include its potential to bring constitutional law closer to constitutional justice, to provide a common discourse about rights for all branches of government, and to help identify the kinds of failures in democratic process warranting heightened judicial scrutiny. Earlier U.S. debates over “balancing” were not informed by recent comparative experience with structured proportionality doctrine and its benefits. Many areas of U.S. constitutional law include some elements of what is elsewhere called proportionality analysis. I argue here for greater use of proportionality principles and doctrine; I also argue that proportionality review is not the answer to all constitutional rights questions. Free speech can benefit from categorical presumptions, but in their application and design proportionality may be relevant. The Fourth Amendment, which secures a “right” against “unreasonable searches and seizures,” is replete with categorical rules protecting police conduct from judicial review; more case-by-case analysis of the “unreasonableness” or disproportionality of police conduct would better protect rights and the rule of law. “Disparate impact” equality claims might be better addressed through more proportionate review standards; Eighth Amendment review of prison sentences would benefit from more use of proportionality principles. Recognizing proportionality’s advantages, and limits, would better enable U.S. constitutional law to at once protect rights and facilitate effective democratic self-governance.
Vicki C. Jackson, Constitutional Engagement in a Transnational Era (Oxford Univ. Press 2010).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Type: Book
Abstract
Explores the role of constitutions and constitutional law in this changing legal environment, analyzing complex currents of convergence, resistance and engagement with the transnational in the United States, Australia, Canada, Colombia, France, Germany, India, South Africa and elsewhere.
Federal Courts Stories (Vicki C. Jackson & Judith Resnick eds., Found. Press 2010).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Government Accountability
,
Judges & Jurisprudence
,
Federalism
Type: Book
Vicki C. Jackson, Thayer, Holmes, Brandeis: Conceptions of Judicial Review, Factfinding, and Proportionality, 130 Harv. L. Rev. 2348 (2017).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Judges & Jurisprudence
,
Comparative Law
,
Legal History
Type: Article
Abstract
Three Harvard Law School alumni — James Bradley Thayer, Oliver Wendell Holmes, Jr., and Louis D. Brandeis — have had outsized impacts on judicial review, how it is conducted and conceived. Part I of this Essay provides a brief overview of Thayer’s theories of judicial deference, Holmes’s value skepticism and deference to “dominant opinion,” and Brandeis’s efforts, through improved understandings of facts, to bring “legal justice” closer to “social justice.” Their influences endure in (at least) rhetorical commitments to judicial deference to legislatures and a certain “value skepticism” that, as Part II suggests, help explain why “proportionality review,” though widely used in other constitutional democracies, has not been adopted here. Part III argues that proportionality review, in some areas, would improve the transparency of constitutional analysis and enable constitutional law to better approach constitutional justice. It further argues that, in an age of “truthiness,” “fake news,” and “kabuki theater” in legislative hearings, courts are most likely, among major institutions of government, to provide publicly transparent and impartial decisionmaking about facts relevant to the constitutionality of laws, whether under proportionality review or other doctrines. Deference may be appropriate, as Thayer, Holmes, and Brandeis in different ways urged, but it should be deployed in ways responsive to the social facts about different governmental decisionmaking processes.
Vicki C. Jackson, Comparative Constitutional Law, Legal Realism, and Empirical Legal Science, 96 B.U. L. Rev. 1359 (2016).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Empirical Legal Studies
,
Legal Theory & Philosophy
,
Comparative Law
Type: Article
Constitutionalism Across Borders in the Struggle Against Terrorism (Federico Fabbrini & Vicki C. Jackson eds., Edward Elgar Publ'g 2016).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Fourth Amendment
,
First Amendment
,
Fourteenth Amendment
,
Terrorism
,
Military, War, & Peace
,
Congress & Legislation
,
International Law
,
Foreign Relations
,
Human Rights Law
Type: Book
Abstract
"This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. Various chapters underline how constitution-like norms consolidate at the level of international and supranational organizations as a limit to the exercise of public power in the field of counter-terrorism policy, especially counter-terrorism financing. Other chapters examine the extraterritorial application of constitutional rights and the migration of constitutional norms - or anti-constitutional practices - from one state to another. Still others consider how transnational cooperation between states in areas such as intelligence gathering and data sharing may call for updating domestic constitutional law rules or for new international law compacts entrenching rights across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders. The book will be of particular interest to academics and graduate or postgraduate students working in the fields of constitutional law, international law, human rights, comparative law and national security law. It may also be of interest to practitioners concerned with national security, counter-terrorism, and related questions of individual rights"--Page [4] of cover.
Vicki C. Jackson, Feminisms and Constitutions, in The Public Law of Gender: From the Local to the Global 41 (Kim Rubenstein & Katherine G. Young eds., 2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Feminist Legal Theory
,
Comparative Law
Type: Book
Abstract
In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame ...
Vicki C. Jackson, Feminisms, Pluralisms, and Transnationalism: On CEDAW and National Constitutions, in The Public Law of Gender: From the Local to the Global 435 (Kim Rubenstein & Katherine G. Young eds., 2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Feminist Legal Theory
,
Comparative Law
Type: Book
Abstract
In demarcating the academic study of the public law of gender, this book brings together leading lawyers, political scientists, historians and philosophers to examine law's structuring of politics, governing and gender in a new global frame ...
Vicki C. Jackson, Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives in Constitutional Democracy, 57 Wm. & Mary L. Rev. 1717 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Courts
,
Elections & Voting
,
Judges & Jurisprudence
Type: Article
Abstract
The role of elected representatives in a constitutional democracy deserves more attention than it typically receives in law schools. Just as judges have a set of role obligations, which are widely discussed and debated, so, too, do representatives. Their obligations, however, are far less widely discussed in normative terms. Understandable reasons for this neglect exist, due to institutional differences between legislatures and courts, law schools’ long-standing focus on courts, and the intensely competing demands on elected officials; but these factors do not justify the degree of silence on the normative obligations of representatives. This Essay seeks to introduce and defend the normative concept of “pro-constitutional” legislative representatives — that is, representatives whose goals are to advance the purposes of constitutional democracy within their own constitutional system. In identifying some of the normative obligations of a “pro-constitutional” representative in a democratically elected legislature, this Essay argues that such obligations are not limited to issues of constitutional interpretation, but extend to an active role in promoting a working and democratic constitutional government. If judges’ decisions are generally to be governed by consistently and impartially applied principles, legislators must balance the demands of many competing norms and multiple obligations of accountability. To act representatively, legislators must not only be aware of their constituents’ views, but must also be willing to engage with their constituents on and sometimes even seek to influence the substance of those views. To act legislatively representatives must act collectively, and thus, in a heterogeneous and pluralistic setting, they must sometimes be willing to compromise. Representatives also may have obligations of providing information, of fair treatment of constituents, and, in the U.S. Congress, of giving special attention to areas of constitutional legislative jurisdiction in which only the federal government can effectively respond to developments. This Essay also argues that law schools should give more attention to the normative roles of elected representatives. Focusing on the normative obligations of members of Congress can help illuminate distinctions among differently constituted legislative bodies, as well as degrees of overlap and difference between the role obligations of judges and those of elected officials. Improved normative understandings of legislative members’ roles may also bear on statutory and constitutional interpretation. And a more complex understanding of these normative dimensions may help better prepare those law graduates who are themselves elected as representatives to evaluate and respond to the competing demands of their position. Finally, developing a more realistically complex account of normatively attractive conceptions of representation may contribute to ameliorating some contemporary political pathologies.
Vicki C. Jackson, Honoring Dan Meltzer – Congressional Standing and the Institutional Framework of Article III: A Comparative Perspective, 91 Notre Dame L. Rev. 1783 (2016).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Courts
,
Federalism
,
Supreme Court of the United States
Type: Article
David F. Levi, David J. Barron, Donald B. Verrilli, Elena Kagan, Martha Minow, Richard H. Fallon, Robert S. Taylor & Vicki C. Jackson, In Memoriam: Daniel J. Meltzer, 129 Harv. L. Rev. 397 (2015).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Biography & Tribute
Type: Article
Vicki C. Jackson, The (Myth of Un)amendability of the US Constitution and the Democratic Component of Constitutionalism, 13 Int'l J. Const. L. 575 (2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
The article explores certain claims about the amendment process of the US Constitution. Empirically, it argues that the difficulty posed by formal procedures in obtaining textual amendments of the US Constitution is overstated, if one looks to history and to analogous constitutional requirements for override of presidential vetoes. It suggests that the low amendment rate may result not only from its formal procedures, and exaggerated estimates of their difficulty, but also from ideological or emotional opposition to amendment, as opposed to other methods of legal change. As a normative matter, it argues that, notwithstanding important arguments for caution in seeking constitutional amendment, a constitution that is truly not amendable by its own formal procedures, that relies on indefinitely long tenures for its highest court, and that is committed to judicial supremacy in constitutional interpretation, is in real tension with the democratic component of democratic constitutionalism.
Vicki C. Jackson, The U.S. Constitution and International Law, in The Oxford Handbook of the United States Constitution 921 (Mark Graber, Sanford Levinson & Mark Tushnet eds., Oxford Univ. Press 2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Foreign Relations
,
Treaties & International Agreements
,
International Law
Type: Book
Abstract
This chapter examines controversies surrounding the U.S. Constitution’s relationship to international law, with particular emphasis on the separation of powers, federalism, the supremacy clause, and individual rights. Before discussing tensions between “original” understandings of international law and the U.S. Constitution, the chapter provides an overview of the founding of the Constitution and its focus on international affairs and foreign relations. It then considers what the Constitution says about treaty law and other international agreements, along with U.S. law’s jurisdiction and supremacy over customary international law. Finally, it explores how international law is interpreted by U.S. law, and how the overlap between international law and constitutional law has increased.
Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (Found. Press 3d ed. 2014).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
Type: Book
Vicki C. Jackson, Comparative Constitutionalism, Legal Education, and Civic Attitudes: Reflections in Response to Professors Krotoszynski and Law, 66 Ala. L. Rev. 155 (2014).
Categories:
Legal Profession
,
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Law
,
International Law
,
Legal Education
Type: Article
Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014).
Categories:
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
Federalism
,
Courts
Type: Article
Vicki C. Jackson, Lee v. Kemna: Federal Habeas Corpus and State Procedure, 127 Harv. L. Rev. 445 (2013).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Criminal Defense
,
State & Local Government
,
Courts
,
Biography & Tribute
Type: Article
Vicki C. Jackson, Constitutional Law in an Age of Globalization, in Israeli Constitutional Law in the Making 205 (Gideon Sapir, Daphne Barak-Erez & Aharon Barak eds., 2013).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Law
Type: Book
Abstract
This book offers a comprehensive study of Israeli constitutional law that moves from constitution-making to specific areas of contestation including state/religion relations, national security, social rights, and structural questions of judicial review.
Rosalind Dixon & Vicki C. Jackson, Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests, 48 Wake Forest L. Rev. 149 (2013).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Federalism
,
International Law
Type: Article
Abstract
Increased interactions among peoples and states combined with the growth of written constitutions are creating new opportunities for “extra-territorial” forms of constitutional interpretation, that is, the interpretation of domestic constitutions by “outsiders.” This article considers the potential benefits, and dangers, of outsider interpretation. It also identifies factors relevant to the appropriateness or legitimacy of such practices, drawing from analogous rules and doctrines developed in the context of U.S. federalism and international law.
Vicki C. Jackson, Sobre el concepto de las reformas constitucionales consideradas inconstitucionales, y su relación con la constitucionalización de los derechos del Estado de bienestar, in Dialogos constitucionales de Colombia con el mundo 141 (Juan Carlos Henao ed., Universidad Externado de Colombia 2013).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Law
Type: Book
Vicki C. Jackson, Comment on Law and Versteeg, 87 N.Y.U. L. Rev. 2102 (2012).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
David Law and Mila Versteeg have used their considerable legal and empirical skills to identify what they provocatively describe as the “declining influence of the U.S. Constitution,” or of what they sometimes call “American constitutionalism.” This claim has been headline-grabbing in important part because of the larger sociolegal context, in which the question of American hegemony in the world of global politics and economics is deeply unsettled. Declining influence in the design of constitutions thus resonates with a larger set of anxieties about the role of the United States in the world.
Vicki C. Jackson, Comparative Constitutional Law: Methodologies?, in The Oxford Handbook of Comparative Constitutional Law 54 (Michael Rosenfeld & Andras Sajo eds., 2012).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
Methodologies of constitutional comparison vary at least as much as, if not more than, methodologies more generally in comparative law. Methods vary in what they aim to do and in who is engaged in comparisons, particularly if the comparative enterprise is defined broadly to include doctrine produced by courts, features of government, and the processes of constitution-making and adoption. This article discusses the different communities of comparative constitutional analysis and identifies some methodological challenges of comparative constitutional analysis.
Vicki C. Jackson, Judicial Independence: Structure, Context, Attitude, in Judicial Independence in Transition 19 (Ajna Seibert-Fohr ed., 2012).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Judges & Jurisprudence
,
Comparative Law
Type: Book
Vicki C. Jackson & Jamal Greene, Constitutional Interpretation in Comparative Perspective: Comparing Judges or Courts?, in Comparative Constitutional Law 599 (Tom Ginsburg & Rosalind Dixon eds., 2011).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Vicki C. Jackson, Methodological Challenges in Comparative Constitutional Law, 28 Penn St. Int'l L. Rev. 319 (2010).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.
Vicki C. Jackson, Paradigms of Public Law: Transnational constitutional values and democratic challenges, 8 Int’l J. Const. L. 517 (2010)(reviewing Ruling the World?: Constitutionalism, International Law, and Global Governance (Jeffrey L. Dunoff & Joel P. Trachtman eds., Cambridge Univ. Press (2009))).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Public Law
,
International Law
,
Comparative Law
Type: Article
Vicki C. Jackson, Democracy and Judicial Review, Will and Reason, Amendment and Interpretation: A Review of Barry Friedman's The Will of the People, 13 U. Pa. J. Const. L. 413 (2010).
Categories:
Constitutional Law
Type: Article
Vicki C. Jackson & Judith Resnick, Sovereignties -- Federal, State and Tribal: The Story of Seminole Tribe of Florida v. Florida, in Federal Courts Stories 329 (Vicki C. Jackson & Judith Resnick eds., Found. Press 2009).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Eleventh Amendment
,
Native American & Tribal Law
,
Sovereign Immunity
,
State & Local Government
,
Federalism
,
Courts
,
Congress & Legislation
Type: Book
Vicki C. Jackson & Judith Resnick, The Idea of a Jurisprudence, a Course, and a Canon: Introducing Federal Courts Stories, in Federal Courts Stories 1 (Vicki C. Jackson & Judith Resnick eds., Found. Press 2009).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Federalism
Type: Book
Vicki C. Jackson, Conclusion: Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction and Interpretation, in Constituting Equality: Gender Equality and Comparative Constitutional Law (Susan H. Williams ed., 2009).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Comparative Law
Type: Book
Abstract
As Katharine Bartlett has written, being a legal feminist entails “asking the ‘woman question’” in law. This essay asks the “woman question” about constitutions and constitutional law, largely with the purpose of generating areas for future research. I focus neither on particular subject areas nor on doctrinal issues, but rather on three areas of constitutional theory: the idea of constitutions as entrenched law under difficult-to-amend provisions, the allocation of jurisdiction in and among different levels and branches of government, and the idea of interpretive theory in constitutional law. First, I want to acknowledge the wide range of subjects in and around constitutions that are amenable to analysis through the lens of gender. Women in many parts of the world now participate in constitution making – the title of a recent collection of essays, Women Making Constitutions, would have been almost inconceivable a century ago. As Vivien Hart notes, greater emphasis on participation in constitution making has in many countries offered opportunities for women to place their mark on and in constitutions. Many questions are embraced in this topic: How have women organized to participate? What have women sought to include in their constitutions? What have women disagreed about? What are the relationships among women's participation in constitution making, the constitutional texts that emerge, and the changed conditions for women in the years thereafter? How much do women participate as office holders, judges, and in other government positions under these constitutions?
Vicki C. Jackson, Progressive Constitutionalism and Transnational Legal Discourse, in The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
International Law
,
Foreign Law
Type: Book
Vicki C. Jackson, Citizenships, Federalisms and Gender, in Migrations and Mobilities: Citizenship, Borders, and Gender 439 (Selya Benhabib & Judith Resnick eds., 2009).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
Type: Book
Vicki C. Jackson, Review of Laws Having a Disparate Impact on Gender, in Global Perspectives on Constitutional Law 130 (Vikram Amar & Mark Tushnet eds., 2009).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Comparative Law
Type: Book
Vicki C. Jackson, Packages of Judicial Independence: implications for reform proposals on the selection & tenure of Article III judges, 137 Daedalus 48 (2008).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Government Accountability
,
Supreme Court of the United States
Type: Article
Susan Bloch, Vicki C. Jackson & Thomas Krattenmaker, Inside the Supreme Court: The Institution and Its Procedures (2nd ed. 2008).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Book
Abstract
This title carefully analyzes the Supreme Court from the nomination process to proposals for reform. The authors have designed this text to be used in two ways. First, it can be used as the "main text" in a seminar on the Supreme Court. Second, it can be used as supplemental reading for any course in constitutional law, American history, American government or other similar courses in law, history or government that touch on the role of the Court. The accompanying instructor's manual will show how it can be used effectively for your course. In writing this book, the authors’ goal has been to bring together selections from the best research published by legal academics and political scientists, along with thoughtful commentary by experienced Supreme Court practitioners and some primary materials, from congressional hearings and Court decisions, to show how the Supreme Court works as an institution.
Vicki C. Jackson, Multi-Valenced Constitutional Interpretation and Constitutional Comparisons: An Essay in Honor of Mark Tushnet, 26 Quinnipiac L. Rev. 599 (2008).
Categories:
Legal Profession
,
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Comparative Law
,
Biography & Tribute
Type: Article
Abstract
Symposium - The Sixth Conference on Law and Philosophy: The Work of Mark Tushnet.
Vicki C. Jackson, What's in a Name? Reflections on Timing, Naming, and Constitution-Making, 49 Wm. & Mary L. Rev. 1249 (2008).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
International Law
Type: Article
Vicki C. Jackson, Packages of Judicial Independence: implications for reform proposals on the selection & tenure of Article III judges, 95 Geo. L.J. 965 (2007).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Courts
,
Government Accountability
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Vicki C. Jackson, The Early Hours of the Post-World War II Model of Constitutional Federalism: The Warren Court and the World, in Earl Warren and the Warren Court: the Legacy in American and Foreign Law 137 (Harry N. Scheiber ed., 2007).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Constitutional History
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Federalism
,
State & Local Government
,
Legal History
Type: Book
Abstract
The Warren Court is often portrayed as hostile to constitutional federalism. But this critique misses the degree to which the Warren Court's jurisprudence was reparative of the legitimacy of state governments, while at the same time it advanced a new form of post-World War II constitutional federalism. The Warren Court's decisions, especially on apportionment, in important respects strengthened the legitimacy of state governments. It is even arguable that the Court's decisions, by providing the impetus for a more democratically legitimate form of state government, helped contribute to a revival of states as a locus of reform, contributing to the more aggressive judicially enforced federalism limits on national power in the late 20th century. The post World War II model of constitutional federalism, which reaction to the human rights abuses of World War II helped legitimate, guarantees a set of basic individual rights against all levels of government. It is a model that the political branches of the United States government supported in the postwar reconstruction of Germany. In raising the floor of basic constitutional norms designed to protect individuals from unfair treatment by any government, state or federal, the Warren Court both anticipated and reflected a burgeoning recognition of worldwide standards of human rights and human dignity, in international documents and in the new constitutions adopted in other federal systems such as Germany, India, and, later on, Canada. The Court's insight that, in a post-Hitler world, all governments must be held to high standards of protection for the rights of the individual and that such standards were not incompatible with vigorous states in a federal union, was consistent with burgeoning models of post-war constitutional federalism.
Vicki C. Jackson, Constitutions as “Living Trees"? Comparative Constitutional Law and Interpretive Metaphors, 75 Fordham L. Rev. 921 (2006).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial review, it is a hallmark that constitutions be construed in a certain sense as "living," with prior interpretations open to modification in light of new developments and changed understandings. This may be a consequence of the debilitation of rationales for intentionalism beyond original generations, and of changes in legal consciousness that undermine the plausibility of more formalist methods. The ubiquity of interpretive change and of multi-sourced methods of interpretation raises questions about claims that democratic legitimacy or appropriate levels of judicial restraint depend on formalist, intentionalist modes of interpretation and exclusive reliance on constitutional amendment for change. Part II explores the metaphors through which we think about the "living" and "original" Constitution. The U.S. metaphor - a "living constitution"- does not necessarily capture the actual methodologies of our own constitutional interpretation, which remain grounded in constitutional text and whose sources include original understandings as well as later history and precedent. In Canada, a widely used metaphor is of their constitution as a "living tree." The idea of a "living tree" may better embrace the multiple modalities - text, original intentions, structure and purpose, precedent and doctrine, values and ethos, prudential or consequentialist concerns - of contemporary constitutional interpretation. It suggests that constitutional interpretation is constrained by the past, but not entirely. Unlike the less tethered "living constitution," it captures the idea of constraint, the role of text and original understanding in the roots of the constitutional tree and the role of precedent and new developments in its growth. Yet all metaphors mislead; they can obscure as much as they illuminate; and the tree metaphor understates the effects of major constitutional change and the role of human agency in that process. Nonetheless, moving the metaphor to the Constitution as a "living tree" may emphasize commonalities in interpretive approaches and thus support the idea of legitimate constitutional disagreement as an ordinary part of adjudication, not a symptom of "lawless" judges engaged in “naked political judgment”.
Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109 (2005).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Comparative Law
Type: Article
Vicki C. Jackson, Comparative Constitutional Federalism and Transnational Judicial Discourse, 2 Int’l J. Const. L. 91 (2004).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Federalism
,
Courts
,
Judges & Jurisprudence
,
Comparative Law
Type: Article
Defining the Field of Comparatative Constitutional Law (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
,
Global Lawyering
Type: Book
Abstract
Jackson, Tushnet, and their contributors, distinguished jurists and legal scholars from around the world, seek to define the field of constitutional law, sometimes expressly but more often by illustrating the way in which each writer thinks about comparative constitutional law. Viewed as a whole, the collection points to common constitutional themes even though how nations responded to these issues differed substantially based on different histories, traditions, and experiences. Three common themes emerge from the essays. First discussed are the relationships of constitutionalism and constitutional law to popular understandings and political contexts and their relationship to constitutional understandings and transformations. A second set of concerns revolve around dilemmas of equality. Third, explicit or implicit in virtually all of the essays is the theme that globalization as a phenomenon requires comparative constitutional study. Here is a thoughtful and stimulating collection that will be of value to legal scholars, students, and others involved with constitutional law issues.
Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180 (1998).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
State & Local Government
,
Courts
,
Federalism
,
Congress & Legislation
Type: Article
Abstract
In Printz v. United States, a narrow majority of the Supreme Court continued the revival of constitutional federalism as a constraint on national power begun in New York v. United States. Professor Jackson concludes that Printz's categorical rule prohibiting federal directives to state employees is not well supported by historical or functional considerations but argues that courts should enforce milder federalism-based limits on national legislation. Judicial enforcement serves rule of law purposes, insisting that Congress recognize that it is constrained by law, and reinforces the constitutional role of the states. Although values such as liberty, participation, competition, and choice can be promoted at different times by different levels of government, securing the constitutional position of states helps preserve their governments as alternative locations of power and politics in which members of different groups can participate, crossing over otherwise important cleavages. The Article argues that judicial enforcement of two kinds of requirements is appropriate: first, with respect to federal regulation of private activity as in Lopez v. United States, that there be a considered connection, consistent with the Necessary and Proper Clause, between the legislation and an enumerated power; second, that the federal government not interfere with the states' constitutionally required legislative, executive, and judicial functions, an understanding that supports a strong presumption against legislative commandeering, and calls for a more nuanced approach to executive commandeering than in Printz. Finally, the Article argues that stability in sustaining a sufficiently principled law of federalism-based limits on national power can be better achieved with more flexible (rather than categorical) standards, given the dynamic and pragmatic character of successful federalism.
Vicki C. Jackson, Seminole Tribe, the Eleventh Amendment, and the Potential Evisceration of Ex Parte Young, 72 N.Y.U. L. Rev. 495 (1997).
Categories:
Constitutional Law
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Eleventh Amendment
,
Remedies
,
Federalism
,
Sovereign Immunity
,
State & Local Government
,
Courts
,
Supreme Court of the United States
Type: Article
Abstract
In its 1996 decision, Seminole Tribe v. Florida, the Supreme Court, reversing itself, held that Congress lacks Article I power to abrogate states' Eleventh Amendment immunity from suit in federal court. In exploring the decision's ramifications, Professor Jackson contends that it may foreshadow more pervasive, and more troubling, shifts in the balance of power between state and federal governments, and among the federal, judicial,  legislative, and executive branches. In particular, the Court's dubious reasoning in Seminole Tribe may have severe repercussions on the federal courts' ability to enjoin state officials from violating federal Iaw in the future. The availability of such equitable relief, under the so-called Ex parte Young doctrine, has long been accepted as a necessary counterbalance to the states' Eleventh Amendment immunity from federal jurisdiction. While the new restrictions on Congress's power would seem to make the availability of such relief more important than before, Professor Jackson examines how the Court's unfortunate analysis in Seminole Tribe may presage a substantial limitation of the Ex parte Young doctrine in the federal courts. Professor Jackson concludes by articulating the dangers that such a course might pose to federal courts' role in maintaining the rule of law and the supremacy of federal law.
Vicki C. Jackson, Susan Deller Ross, et al., Report of the Special Committee on Gender to the D.C. Circuit Task Force on Gender, Race, and Ethnic Bias, 84 Geo. L.J. 1657 (1996).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Litigation & Settlement
,
Discrimination
,
Race & Ethnicity
,
Gender & Sexuality
,
Courts
,
Judges & Jurisprudence
,
Federalism
Type: Article
Vicki C. Jackson, One Hundred Years of Folly: The Eleventh Amendment and the 1988 Term, 64 S. Cal. L. Rev. 51 (1990).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Eleventh Amendment
,
Supreme Court of the United States
,
Sovereign Immunity
,
Judges & Jurisprudence
,
Congress & Legislation
,
Federalism
,
State & Local Government
Type: Article
Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1 (1988).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Eleventh Amendment
,
Supreme Court of the United States
,
Sovereign Immunity
,
Courts
Type: Article

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