Faculty Bibliography
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The Bridge is divided into two major parts: a six-unit series on legal reasoning, and a series of modules on American Legal Theory, divided into six "tracks" representing important schools of thought. The series on legal reasoning should be approached in sequence. The materials on legal theory are more modular, and can be used in numerous ways.
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In his Essay, Judicial Review of Direct Democracy, Professor Julian Eule argued powerfully for intensified judicial scrutiny for bill-of-rights violations of laws enacted by popular initiative. Professor Eule based his argument on the ways in which the Framers designed the republican form of government to depart from a pure democracy so as better to respect the basic rights and interests of the governed. Professor Frank Michelman carries Professor Eule's inquiry one step further, by questioning whether the democratic ideal itself-let alone a "republican" replacement for it-is realizable through direct democracy.
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Address delivered March 14, 1998 at New York University School of Law.
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A memorial to US Supreme Court retired Justice William J. Brennan, Jr. who died on July 24, 1997 is presented by 11 commentators which include Justice Brennan's friends and associates. Comments include predictions of the transcendence of his voice informing and challenging future jurists in all areas of the law. His personal impact is noted as well. He is remembered with the genuine affection which he bestowed upon those who knew him.
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Agreeing and sympathizing as I do with what I take to be the core of Professor Abraham's argument—that prevailingly American constitutional thought and public reason model their conceptions of liberty and basic rights too much on proprietorship and too little on citizenship—I confine myself here to a suggestion about the framing of the argument.
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Using the proposed constitutional amendment to ban the desecration of the US flag as a case study, the tension between legal positivism & popular sovereignty is explored. The collective will of the governed constitutes the highest law in a constitutional democracy. In contrast to this democratic positivism, the constitution itself predates the will of the people since it is based on a preexisting moral idea. The controversy over flag desecration forces the question as to whether such a preexisting idea requires protection in the face of unpopular political expression. Constitutional democrats, it is argued, must therefore be legal antipositivists. More than an exercise in free will, however, constitutional amendment making is also an ethical judgment & moral commitment. Popular sovereignty, therefore, is both an expression of the people’s will to make law in the way they see fit, & a search for the opposite – a higher ethical & moral position.
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Argues that Hannah Arendt’s (1967 [1951]) claim that human beings have the right to have rights ought not to be read as the contention that there exists a universal abstract moral human right of state membership that compels states to afford individuals’ basic rights. Such a reading implies that there are two fields of rights, the moral & the empirical, a position that does not square with Arendt’s description of rights as inherently substantive & deriving from an individual’s participation in the social production of a moral consciousness. For Arendt, the attainment of rights can only be based on contributions by actions to the production of those rights. However, this leads her into a paradox: for those who have not participated in the production of such rights, ie, refugees, there can be no basis for claiming that they have a right to have rights. Only by describing the right to have rights on a different moral plane as the substantive production of rights can Arendt move beyond this paradox, a move explicitly declined in her description of rights as wholly substantive.
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In "Political Liberalism," the influential moral philosopher John Rawls attempts in part to justify a particular, liberal conception of justice by arguing that it is the conception which best corresponds to the way we perceive our powers and motivations when we behave politically. In this review essay, Professor Michelman suggests that Rawls' method may offer a way out of the debates over subjectivity and value currently occupying many legal scholars. By starting from a depiction of the liberal subject as the kind of person for whom constitutional democracy is the appropriate form of social ordering, Professor Michelman observes, Rawls constructs an "internal critique" of American society which depends on the practical, cultural appeal of that view of the person, not on its ultimate truth. However, Professor Michelman concludes that whether Rawls' approach is necessarily relativist-speaking only to those who already believe in liberal constitutionalism-or instead produces universally generalizable prescriptions remains unclear.
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Prescriptive political and moral theories contain ideas about what human beings are like and about what, correspondingly, is good for them. Conceptions of human “nature” and corresponding human good enter into normative argument by way of support and justification. Of course, it is logically open for the ratiocinative traffic to run the other way. Strongly held convictions about the rightness or wrongness, goodness or badness, of certain social institutions or practices may help condition and shape one's responses to one or another set of propositions about what people are like and what, in consequence, they have reason to value.
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This brief opposes the overturn of "Roe v. Wade" and resists weakening "Roe's central holding" that would allow states to overturn legal abortion. The brief was written for 885 law professors. "Roe" was not a "constitutional aberration," or "an exercise of raw, judicial power." Some members of the Supreme Court seem to think that the state has "an overriding interest" in protecting fetal life. Some Court members have questioned "Roe's" trimester framework. A person's decision to abort should be done privately. If women are not free to choose abortion, they will not have equality. There is an absence of "express rights of privacy and procreational freedom" in the Constitution. "Roe" was 1 instance of the Court's recognition of constitutional rights that are not named explicitly. Historical materials are drawn on to show the link between trends in society and the "judicial recognition of unenumerated rights." The most serious questions about "Roe" deal with its trimester framework. Justice Blackmun's majority opinion said that the 1st trimester of pregnancy was personal. "Roe" said that abortions created a medical risk at the beginning of the 2nd trimester. Therefore, the government was more interested in the health of the mother at that time. The state could then regulate abortion "in ways that are reasonable related to maternal health." The start of the 3rd trimester was when the fetus was viable. The right of a woman to end her pregnancy "offends powerful moral forces." Some of "Roe's" critics had their scientific facts wrong. Medical authorities think Justice O'Connor is mistaken when she says that "Roe" is "on a collision course with itself." The 23rd to 24th week of pregnancies where the fetal organs can "sustain life outside the womb." This has not changed since "Roe" was decided in 1973, nor is it likely to in the future. Some "amici" believe that the state can never have an interest in the fetus. The state can not have an interest in the fetus distinct from the woman who will give birth to it. During previability, restricting a woman's procreational rights would not be scientifically supportable. The state does have an interest in "upholding the value of human life." "Roe" is "within the mainstream" of constitutional jurisprudence and should be reaffirmed.
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Recent years have witnessed several proposals to reconsider American constitutionalism in light of the "civic republican" strain identified by historians in the political thought of the founding era. This new republicanism must meet (among others) two objections. First, that traditional republicanism was a solidaristic doctrine presupposing a degree of moral consensus that is nonexistent in a modern, diverse, liberal society. Second, that it was a majoritarian doctrine of popular legislative supremacy that is fundamentally incompatible with the modern constitutionalist aim of securing, by judicially enforced higher law, individual rights against political oppression. Professor Michelman takes up these two objections to the "republican revival," contending that only through a modern reconsideration of republican constitutional thought can we hope to make sense for our age of Americans' persistent beliefs and avowals that political liberty calls for both "a government of the people, by the people" and "a government of laws and not of men." Drawing support from both traditional republican sources and contemporary readings, the author argues that these two demands are jointly satisfiable only by ideally conceiving of both legislative politics and constitutional adjudication as forms of self-revisionary normative dialogue through which personal moral freedom is also achieved. Using Bowers v. Hardwick as an example, he suggests that such a dialogic-republican constitutional theory can inspire stronger judicial protection of individual rights than do competing theories.
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