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Human Rights, Constitutional Rights, and Judicial Review: Comparing and Assessing Michael Perry\u27s Early and Contemporary Arguments
Get PDFIn this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Contemporary Perry advocates an originalist, but novel and nuanced, model of judicial review. Notably, he contends that there is a global political morality of human rights and that this global morality should influence the interpretation of American constitutional law. I am critical of Early Perry but find Contemporary Perry’s theory attractive, albeit with caveats.I begin the Essay by identifying three criteria for evaluating competing models of judicial review in individual rights cases: (1) majoritarian self-government, (2) judicial objectivity and competence, and (3) functional justification. Using these criteria, I then assess Early and Contemporary Perry in turn. I conclude that Early Perry’s posited search for political-moral truth provided a compelling functional justification for his model of judicial review but that, conversely, the model faltered badly under my remaining criteria—majoritarian self-government and judicial competence and objectivity. Turning to Contemporary Perry, I find that the model of judicial review that he proposes, viewed in the abstract, would appear to serve a powerful function—bringing American constitutional law into closer alignment with the political morality of human rights—even while also accommodating majoritarian self-government and the need for judicial objectivity and competence, thus satisfying each of my three criteria to a substantial degree. Moving from an abstract account to a more fine-grained analysis, however, I go on to argue that Contemporary Perry’s model, as elaborated and applied, might not be as objective as it seems, a weakness that also tends to undermine the model’s compliance with the criterion of majoritarian self-government. Accordingly, my overall assessment of Contemporary Perry is positive but qualified
Religion, Law, and the Constitution, 2d
No full textThis tightly reasoned book brings a measure of coherency to this controversial, fast-moving, and seemingly chaotic field of law. It begins by recounting the history of American religious liberty, from its Lockean origins to the First Amendment to the present day. The book goes on to identify a set of embedded and evolving constitutional values, values reflecting both individual rights and broader structural concerns. Drawing upon these values as explanatory tools, the book explores and evaluates the Supreme Court’s contemporary First Amendment doctrine under the Free Exercise and Establishment Clauses, as well as its protection of religious speech under the Free Speech Clause. A separate chapter discusses other important sources of religious freedom, including the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.Now in its second edition, the book provides comprehensive coverage of all of the major facets of the Supreme Court’s decision-making, including important developments since the first edition was published. It provides selective coverage of lower court decisions as well, and it includes references to leading academic works. In its concluding chapter, the book highlights ongoing developments in the American religious landscape and explains how they might affect the future of religious liberty in the United States.Offering clear exposition combined with sophisticated analysis, this book will be of value not only to students but also to scholars, lawyers, and judges.
A volume in the Concepts and Insights series. Predecessors of the book were published in 2003 and 2009 as Constitutional Law: The Religion Clauses.https://www.repository.law.indiana.edu/facbooks/1301/thumbnail.jp
What Will the “Foreseeable Future” Bring for Climate- Imperiled Species?
Get PDFThe Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the federal agencies in charge of deciding to list species under the ESA faced risk uncertainty when assessing the likelihood and magnitude of threats to species and their habitats from climate change predominantly because of scientific uncertainty and difficulty predicting mitigation efforts.
This Note argues that instead of the 2019 amendments providing the intended clarity and consistency, the “foreseeable future” definition instead weakens the substantive standards used in the ESA listing process, limits federal agencies’ ability to consider climate change when making decisions on whether to provide species with ESA protections, and ultimately will push climate-imperiled species further toward the risk of extinction. To provide more effective guidance to the agencies making listing decisions under the ESA, revised rulemaking should require the agencies to explain how they deal with uncertainties and species’ risk of endangerment and to apply standards consistently
Criminal Defamation and Freedom of Speech in the Internet Age: A Study for Indonesian Democratic Values
Get PDFFor a country that has been declared a democratic nation since it gained independence, Indonesia still faces the real challenge of maintaining democratic values. Currently, Indonesian legal regulations do not provide a clear standard for when speech is protected and when it can be considered actionable defamation. The obscure scope of the law means that it can affect some kinds of speech, such as opinion or criticism, and render that speech punishable as a crime.
This study analyzes Indonesia’s criminal defamation laws by examining what is protected and unprotected speech. The study examines various laws, including Indonesian statutes and judicial decisions. The analysis begins by examining the history of Indonesia’s legislation related to defamation and questions whether regulating defamation, both offline and online, under criminal law is necessary for Indonesia. A description of traditional offline defamation law sets the foundation for the analysis, while the contours of Indonesia’s online defamation laws are drawn from this traditional analysis.
In this dissertation, the discussion of free speech will be linked to how Indonesia, since gaining independence, has always declared itself to be a democratic country. By examining statutes and cases involving offline and online defamation that resulted in criminal prosecution, the dissertation makes broader observations about democratic values in Indonesia. The dissertation makes a distinction between the laws governing offline and online criminal defamation because the legislation governing online defamation is sharply different, with Indonesia having particularly strong cyber laws regulating speech.
The study also examines several countries’ approaches to regulating criminal defamation and free speech. The countries chosen are ones with both better and worse free speech indexes than Indonesia. Through a comparative examination, this study reveals the advantages and disadvantages of regulating defamation through criminal law, both offline and online. These comparisons lead to recommendations for how Indonesia might adapt and revise its defamation laws.
This dissertation proceeds in three parts. First, it explores the definition of freedom of speech and defamation under Indonesian law. The first part explains how the current Indonesian legal system does not provide explicit standards for determining when defamation is actionable and when it should receive protection as free speech. Second, it then describes how other countries approach issues of freedom of speech and defamation, with attention given to how the internet poses unique challenges regarding speech regulation and whether other countries regulate offline and online defamation under separate legal provisions. Finally, it synthesizes the insights from the previous research questions to provide concrete recommendations for Indonesian law reform. A comparative perspective provides insight into how the Indonesian legal system could balance free speech interests while ensuring accountability and liability for online speech that causes harm
Doorways of Discretion: Psychological Science and the Legal Construction and Erasure of Racism
No full textShines a light on the ways in which civil procedure may privilege—or silence—voices in our justice system
In today’s increasingly hostile political and cultural climate, law schools throughout the country are urgently seeking effective tools to address embedded inequality in the United States legal system. A Guide to Civil Procedure aims to serve as one such tool by centering questions of systemic injustice in the teaching, learning, and practice of civil procedure.
Featuring an outstanding group of diverse scholars, the contributors illustrate how law school curriculums often ignore issues such as race, gender, disability, class, immigration status, and sexual orientation. Too often, students view the #MeToo movement, Black Lives Matter, immigration/citizenship controversy, or LGBTQ+ issues as mere footnotes to their legal education, often leading to the marginalization of many students and the production of graduates that do not view issues of systemic injustice as central to their profession.
A Guide to Civil Procedure reveals how procedure is, and always has been, a central pressure point in the struggle to eradicate structural inequality and oppression through the courts. This book will give students and scholars alike a more complex view of their roles as attorneys, sharpen their litigation skills, and provide a stronger sense of community and purpose in the law school classroom.
Includes the chapter Doorways of Discretion: Psychological Science and the Legal Construction and Erasure of Racism by Maurer Professor Victor D. Quintanilla.https://www.repository.law.indiana.edu/facbooks/1308/thumbnail.jp
