Recent UW Law Faculty Scholarship: America’s Amoral Constitution as Product of Self-contradictions; Rights Jurisprudence from Minority Protection to Minority Power Sharing; Constitutional Change in 2020; Popular Constitution-Making in South America; and U.S. Law School Mission Statements

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • “America’s Constitutional Contradictions” 71 American University Law Review Forum 1 (2021) by FRANCISKA COLEMAN, UW Law School
    In this Response, Coleman suggests that America’s amoral Constitution is not a free-standing original choice but rather is the product of the nation’s inability to resolve its substantive and procedural self-contradictions: the contradiction between the moral values of the Declaration of Independence (“the Declaration”) and the immorality of slavery, the contradiction between de facto white supremacy and de jure racial equality, and the contradiction of constitution creation by amendment.
  • “From Protection to Empowerment” 101 Boston University Law Review 1879 (2021) by FRANCISKA COLEMAN, UW Law School
    This Essay notes that we are now living in a time when denials of citizenship are partial and when oppression and privilege intersect in the bodies of the traditionally marginalized as well as the traditionally privileged…. This Essay seeks to explain this shift from protection to political power in terms of jurisprudential tribalism, in which jurists’ desires for peer group affirmation dictates, often unconsciously, their understandings of which characteristics are salient and warrant protection in a conflict. …  This Essay concludes by calling for a shift in rights jurisprudence from a focus on minority protection to a focus on minority power sharing, noting that a framework of empowerment is better able to engage intersectional identities and combat jurisprudential tribalism.
  • “2020 Constitutional Reform Country Report: The USA” in The 2020 International Review of Constitutional Reform 303 (1st ed., 2021) by FRANCISKA COLEMAN, UW Law School
    The struggle over the scope and meaning of equal citizenship, which engulfed the American public during the Trump presidency, intensified during 2020. The conflicts over health inequality, court capture, and access to the ballot were also conflicts over the scope and nature of equal citizenship for minority groups. The major events of 2020–the impeachment of President Trump, the nation’s response to COVID-19, the George Floyd protests, a conservative SCOTUS, and the election of a woman of color as the vice-president –were embedded in this larger struggle to define the contours of full American citizenship. Part of these debates played out in the form of proposed constitutional amendments. As a result, this chapter explores how formal and informal methods of constitutional change were deployed to advance competing conceptions of equal citizenship in response to the controversies of the day.
  • “Introduction- We, the Mediated People: Popular Constitution-Making in Contemporary South America” in We, the Mediated People: Popular Constitution-Making in Contemporary South America (Oxford University Press, forthcoming) by JOSHUA BRAVER, UW Law School
    The “people” are the ultimate source of authority for a constitution. But who are the people? … Braver argues that through the “extraordinary adaptation” of old institutions, the people and its constitutional convention may include all parties…. The adaptation must be principled: the revolutionary must first exhaust all other legal channels, openly acknowledges the violation to seeks popular vindication, and concede enough to the opposition so that it may begrudgingly acquiesce to the new constitution. He develops his theory by examining all four instances of popular constitution-making in contemporary South America as it is the region with the most holdings of freely and fairly elected constitutional assemblies within liberal democracies after the end of the Cold War.
  • “Table of U.S. Law School Mission Statements, 2019 & 2021” by ELIZABETH MERTZ, UW – Madison, American Bar Foundation and FRANCES TUNG, American Bar Foundation
    This Table continues a data-sharing effort begun by Scharf and Merton in 2016. At that time, Scharf and Merton collected all available mission statements for U.S. law schools, and made their data publicly available on the University of Massachusetts website; we are following in their footsteps by sharing the result of our efforts, undertaken in 2019 and 2021, on SSRN and the American Bar Foundation webpage. This is part of a larger project on law school education funded by the American Bar Foundation and directed by Elizabeth Mertz.

For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.