Faculty Bibliography
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Laurence H. Tribe, Saenz Sans Prophecy: Does the "Privileges or Immunities" Revival Reveal the Future--or Expose the Hidden Structure of the Present?, 113 Harv. L. Rev. 110 (1999).
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This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia’s ideas about judicial interpretation from varying standpoints.
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As recent trade agreements such as NAFTA and the Uruguay Round of GAYT illustrate, it has become common for Presidents to submit major international agreements to both Houses of Congress for simple-majority approval, even though Article 11, section 2 of the Constitution provides for the President to submit treaties to the Senate for approval by two thirds of the Senators present. In a recent article in the Harvard Law Review, Professors Bruce Ackerman and David Golove recounted the rise of the "congressional executive agreement" as an alternative to the treaty form. In addition to arguing that use of the congressional-executive agreement is consistent with constitutional text, Professors Ackerman and Golove asserted that political events in the 1940s so altered the proper understanding of the Constitution that, despite the absence of any amendment in accord with Article V, the Treaty Clause of Article II became purely optional. In this Article, Professor Tribe challenges both of those conclusions and the free-form method of constitutional analysis that underlies them. He suggests that modes of argument that regard the Constitution's instructions for treatymaking and for constitutional amendment as merely optional are not genuinely constrained by what the Constitution says or by how its parts fit together. Such modes of argument instead embody major errors in what Professor Tribe describes as the "topology" of constitutional construction - errors that, in his view, disqualify approaches like those of Professors Ackerman and Golove from serious consideration as legitimate forms of interpretation. Focusing particularly on Professor Ackerman's notions of "constitutional moments" and "higher lawmaking" outside of Article V, Professor Tribe seeks to show that resort to extraordinary theories of constitutional change threatens to undermine genuine inquiry into the meaning of the Constitution's text. Accordingly, Professor Tribe calls for an unabashed return to rigor and precision in the interpretive process - for a commitment to take text and structure seriously.
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This joint memorandum is submitted to the court hearing Dellums v. Bush. This amicus brief advocates that the President may not order American armed forces to make war without consultation with and approval by Congress. The brief also argues that the case is justiciable.
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A profile of recently retired US Supreme Court justice William J. Brennan Jr paints him as the chief architect of the federal judiciary's protection of individual rights.
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Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, in The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics (Theodore L. Becker ed., 1991).
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The book moves from a discussion of the relationship of physical and political theory to an explanation of the meaning of quantum politics. One thought experiment argues that all political perception is subjective.
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This article focuses on one important aspect of the quest for constitutional meaning: how to determine whether a particular liberty - whether or not expressly enumerated in the Bill of Rights - is a "fundamental" right. Whether under the somewhat tarnished banner of substantive due process or under a different rubric, the designation of a right as fundamental requires that the state offer a compelling justification for limitations of that right. In addition, under the Equal Protection Clause of the Fourteenth Amendment, state-sanctioned inequalities that bear upon the exercise of a fundamental right will be upheld only if they serve a compelling governmental interest.' Because the "strict" scrutiny which applies to laws that affect fundamental rights in either of these two ways is usually "fatal," whether to designate a right as fundamental poses a central substantive question in modern constitutional law.
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Laurence H. Tribe, Abortion: The Clash of Absolutes (W.W. Norton 1990).
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These remarks were delivered as the Commencement Address at New York University School of Law on May 19, 1989.
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♦See also♦, Laurence Tribe, On Reading the Constitution, 9 Tanner Lectures on Human Values (University of Utah Press, 1988).
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In the past few years a wave of lawsuits has crashed against the shores of the beleaguered legal system. Cigarette smokers have gone to court, suing tobacco companies for injuries allegedly caused by years of a deadly habit. If the smokers win, cigarette makers may be held accountable for an estimated $80 billion a year in smoking-related losses; cigarette prices may shoot up to $3 a pack, radically reducing smoking and saving millions from premature death. A major issue in the lawsuits involves the familiar warnings on cigarette packages and in cigarette advertisements.
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In the American Constitutional system, rights tend to be individual, alienable, and negative--such rights belong to persons as individuals; they are subject to alienation by those persons; and they impose on the government a duty to refrain from certain injurious actions. The right of a woman to terminate her pregnancy sheds light on these 3 areas. Although a woman's right to terminate a pregnancy was recognized in Roe v. Wade, by failing to make abortion free of charge, the government requires women to make affirmative use of their bodies for childbearing. In Harris v. McRae, the Supreme Court indicated that the government is free to leave poor women to finance abortions without public assistance. A simultaneous decision was made to provide governmental funding for the necessary medical expenses involved in childbirth. Justice Brennan described this as a "deliberate effort to discourage the exercise of a constitutionally protected right." As a result, women are forced to sacrifice their liberty and their labor. It is difficult to justify the government's decision not to fund impecunious women's choice of abortion if the right to terminate an unwanted pregnancy is viewed as an inalienable right. The government's affirmative duties are arguably owed to the fetus, who can be considered a holder of 5th and 14th amendment rights. Any such right to life cannot be deemed alienable by the unborn. This suggests that the government bears an affirmative duty to protect the interests of the fetus to the extent that it may do so without coercing involuntary pregnancy.
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In this article, Professor Tribe criticizes recent Supreme Court decisions and disputes Professor Easterbrook's recent defense of the Court's increasingly utilitarian approach to legal problems. Professor Tribe argues that this approach is insufficiently attentive to the distribution of wealth and power and to the underlying definitions of social values and perspectives that constitutional decisions need address.
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"Constitutional Choices illuminates the world of scholarship and advocacy uniquely combined by Laurence Tribe, one of the nation’s leading professors of constitutional law and most successful practitioners before the Supreme Court. In his new hook, Tribe boldly moves beyond the seemingly endless debate over which judicial approaches to enforcing the Constitution are “legitimate” and which are not. Arguing that all claims to legitimacy must remain suspect, Tribe focuses instead on the choices that must nonetheless be made in resolving actual constitutional controversies. To do so, he examines problems as diverse as interstate banking, gender discrimination, church subsidies, the constitutional amendment process, the war powers of the President, and First Amendment protection of American Nazis. Challenging the ruling premises underlying many of the Supreme Court’s positions on fundamental issues of government authority and individual rights, Tribe shows how the Court is increasingly coming to resemble a judicial Office of Management and Budget, straining constitutional discourse through a managerial sieve and defending its constitutional rulings by “balancing” what it counts as “costs” against what it deems “benefits.” Tribe explains how the Court’s “Calculus” systematically excludes basic concerns about the distribution of wealth and power and conceals fundamental choices about the American polity. Calling for a more candid confrontation of those choices and of the principles and perspectives they reflect, Tribe exposes what has gone wrong and suggests how the Court can begin to reclaim the historic role entrusted to it by the Constitution." -- Harvard University Press
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In recent years the Supreme Court often has followed the modern trend and applied cost-benefit analysis to reach its decisions. Professor Tribe, the second annual Mathew O. Tobriner Memorial Lecturer, criticized the use of this technocratic mode of analysis by a constitutional court. His critique focused on seven essential dangers of that mode of analysis: (1) The devaluation of process as an end in itself, (2) Ignoring the disparity in how alternative rules affect the rich and poor, (3) Focusing on the tangible effects of challenged governmental practices to the exclusion of intangibles, (4) Allowing case-by-case decision-making to obscure the direction in which the law is moving, (5) Over-looking the constitutive dimension of governmental action, (6) Abdicating responsibility for choice, and (7) Indulging in judicial activism in the guise of strict construction.
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Argues that consideration of the ERA should focus on the general principles it would establish: (1) gender neutrality in legal classifications; (2) strict scrutiny of laws or government practices that implicitly disadvantage persons on account of their sex; and (3) strict scrutiny of laws that disproportionately burden one sex by their statistical impact. (CMG)
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In INS v. Chadha, the Supreme Court decided that the one-House legislative veto was unconstitutional. The Court held that the veto under- mined the separation of powers and violated the bicamerality and pres- entment requirements. In this Article, Professor Tribe examines the rea- soning behind the Court's decision and the potential impact of the decision on Congress and the lower courts. Professor Tribe challenges the Court's premise that Congress's veto decision in Chadha was necessarily a legis- lative action and questions the general principle that Congress cannot delegate power to itself. Nevertheless, he argues that the Chadha result may be defensible on narrower bill of attainder or usurpation-of-judicial- futnction grounds. Finally, Professor Tribe agrees with the majority's hold- ing that the legislative veto provision was severable from the rest of the delegation of power. He proposes a test for severability that avoids the traditional focus on hypothetical legislative intent and that itill pernit the survival of most of the existing statutes containing legislative veto provisions.
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In this Comment, Professor Tribe takes issue with Professor Dellinger's defense of nondeferential judicial review of constitutional amendment process questions. Following this Comment, Professor Dellinger responds to Professor Tribe's criticisms.
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This essay discusses the recent barrage of proposals to curtail the jurisdiction of the federal courts: at least eighteen such proposals were pending in the House of Representatives on June 3, 1981.' Those unfamiliar with the tenor of the pending measures might well conclude that lawyers and legalism had finally taken over Capitol Hill alto- gether, or perhaps that the Nation as a whole had developed an unac- countable fascination with matters that, in more robust times, would have seemed too technical and arcane to be of general concern.
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Discusses a televised investigation of the California Supreme Court. Threat against the principle of an independent judiciary; Public inquiry that focused on the delay in announcing unpopular decisions; Inquiry focusing on the moral implications of releasing details of one decision to newspapers before its formal announcement to the public.
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In this Comment, Professor Tribe explores some of the possible theoretical ramifications of the Bakke decision. Professor Tribe chooses not to detail the points of agreement and conflict in the Justices' various opinions in that case; instead he draws from them strands reflecting on broader doctrinal themes in constitutional law. Thus, Bakke is examined for what it has to say regarding first the the area of equal protection, then the idea of procedural fairness as distinct from accuracy of result, and finally the notion of structural justice.
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Although decided less than one year ago, National League of Cities v. Usery has come to symbolize the Burger Court's concern for the rights of states in the federal system. In this Article, Professor Tribe argues that, however surprisingly, the doctrinal boundaries and distinctions drawn in the decision prevent it from being understood as anything but an effort by the Court to provide the states leeway to afford their citizens basic governmental services guaranteed by the Constitution. Under this view, "National League of Cities" emerges not as another example of the Court's general move to restrict personal rights, but rather as a step reflecting an underlying recognition of affirmative rights in a just constitutional order.
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Courts have often advertised an ability to determine when a suit is "really" against a state, or a tax or regulation is "really" a burden on a federal instrumentality. The conceptual difficulties of the holdings in each area suggest, however, that this advertising is largely deceptive. In this Article, Professor Tribe argues that attention to the question of who should decide an intergovernmental immunity issue - the states, the federal courts, the federal executive, or Congress - illuminates the law of eleventh amendment immunities and intergovernmental tax and regulatory immunities and supports all but a handful of the results courts have reached. By reserving to Congress the ultimate authority to determine intergovernmental immunities, he concludes, courts have ensured that the interests of the states as separate sovereigns will receive due weight in the formulation of national policy.
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Discusses the judicial principles of "suspect classifications" and "conclusive presumptions," particularly as they relate to the constitutional rights of children and attempts to formulate a tenable legal doctrine governing the rights of children and other "semi-discrete" minorities.