December 2008 Vol. 107 No. 3 THE REVIEW
ARTICLES

The Myth and the Reality of American Constitutional Exceptionalism

Stephen Gardbaum

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the types of positive constitutional rights, including social and economic rights, that many other modern constitutions recognize.

  READ MORE    //  VIEW PDF

Uncertainty Revisited: Legal Prediction and Legal Postdiction

Ehud Guttel & Alon Harel
READ MORE    //  VIEW PDF
NOTES

A Narrow Path to Diversity: The Constitutionality of Rezoning Plans and Strategic Site Selection of Schools After Parents Involved

Steven T. Collis

Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K–12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy’s concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy’s past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny.

  READ MORE    //  VIEW PDF

A Call for the End of the Doctrine of Realignment

Jacob S. Sherkow
READ MORE    //  VIEW PDF
& Other Current Events

Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
MAILING LIST
Sign Up to Join Our Mailing List