Article Request, and Extra-legal Cases

[Sean Wilson]

... I think it would be beneficial to ask at the outset what you mean by "extra legal." You'll only end up with theories as to what that is, in the context that you ask the question. A better question, it seems, would be to simply ask this: what decisions most egregiously breach the things the Constitution could be TAKEN to say, without a sufficient cultural or political warrant (explanation).  In this sense, your target is not a fixed one. What constitutes "legal" are all those potential arrangements that could be had for constitutional text. Another question to ask which is much better is: among the chosen arrangements today that are "legal,"  how could they be much much different (and better), yet still remain "legal." This asks, in essence, how could we more creatively arrange the constitution to best suit American culture?  
 
Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=596860
Wittgenstein Discussion: http://seanwilson.org/wittgenstein.discussion.html
 

________________________________
From: Mark S Kende <mark.kende at drake.edu>
To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
Sent: Tuesday, October 4, 2011 1:08 PM
Subject: RE: Article Request, and Extra-legal Cases


 
I have two questions for the list.  Feel free to reply privately.
 
1.I recently saw an SSRN paper mentioned that dealt with the fact that the House of Representatives now requires its members to assert the constitutional foundations for any legislation being introduced.  I believe the paper assesses the legal significance of this House rule.  Does anyone know the SSRN or other cite for this paper?
 
2.Which U.S. Supreme Court cases, if any, do folks think should or could be considered “extra-legal” in some sense?  I don’t mean cases that people really dislike, though there may be some overlap.  I also would prefer to stay away from cases that have been overturned by the Court itself as that seems too easy.  You can define that term as you wish otherwise.  (Perhaps one answer some folks would have is no cases, as the Court’s decisions can’t be “extra-legal.”)  Korematsu occurred to me as a possibility (though I can see the counter-arguments) but I would love to hear what others think.
 
Thanks.  Mark
 
Professor Mark Kende
James Madison Chair in Constitutional Law
Director, Drake University Constitutional Law Center
2507 University Ave., Des Moines, IA 50311
515-271-3354, 515-271-1858 (fax)
mark.kende at drake.edu
 
Author, Constitutional Rights in Two Worlds:  South Africa and the United States (Cambridge Univ. 2009), http://www.amazon.com/Constitutional-Rights-Two-Worlds-Africa/dp/product-description/0521171768
SSRN sample papers:  http://ssrn.com/author=339761 
Center Web Site:  http://www.law.drake.edu/academics/conLaw/  
 
 
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