James E. Fleming
Education
University of Missouri
A.B., summa cum laude, Political Science, 1977Harvard Law School
J.D., magna cum laude, 1985Princeton University
Ph.D., 1988 Politics
Experience
Fordham University School of Law
Leonard F. Manning Distinguished Professor of Law, 2006-2007
Professor of Law, 1998-2006
Associate Professor of Law, 1991-1998
Courses Taught: Constitutional Law; Constitutional Theory; Legal Process; Remedies; TortsCravath, Swaine & Moore
Attorney, 1986-1991
LitigationHarvard University
Teaching Fellow, Fall Semester 1984
Moral Reasoning: Justice, Professor Michael J. SandelPrinceton University
Teaching Fellow, Fall Semesters 1979 and 1980
Constitutional Interpretation, Professor Walter F. Murphy
Research Fellowships
Harvard University
Faculty Fellow in Ethics, Center for Ethics and the Professions, 1999-2000 YearThe Brookings Institution
Research Fellow, Governmental Studies Program, 1981-1982 Year
Publications
"Successful Failures of the American Constitution," in The Limits of Constitutional Democracy, S. Macedo and J. Tulis, eds., Princeton University Press (forthcoming).
"Natural Law: U.S. Law," in 4 The Oxford International Encyclopedia of Legal History 217, Stanley N. Katz, ed., Oxford University Press (2009).
"The Odyssey of Cass Sunstein," 43 Tulsa Law Review 843 (2009).
"Ronald Dworkin," in The Yale Biographical Dictionary of American Law 178, Roger K. Newman, ed., Yale University Press (2009).
"Toward a More Democratic Congress?" in Symposium The Most Disparaged Branch: The Role of Congress in the Twenty-First Century, 89 Boston University Law Review 629 (2009).
American Constitutional Interpretation, with W. F. Murphy, S. A. Barber, & S. Macedo, 4th ed., Foundation Press (2008).
"Rewriting Brown, Resurrecting Plessy," 52 Saint Louis University Law Journal 1141 (2008).
"The Balkanization of Originalism," 66 Maryland Law Review 10 (2007).
Constitutional Interpretation: The Basic Questions, with Sotirios A. Barber, Oxford University Press (2007).
"The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution," 75 Fordham Law Review 2885 (2007).
"Rights, Responsibilities, and Reflections Upon the Sanctity of Life," with Benjamin C. Zipursky, in Ronald Dworkin 109, Arthur Ripstein, ed., Cambridge University Press (2007).
"The New Constitutional Order and the Heartening of Conservative Constitutional Aspirations," 75 Fordham Law Review 537 (2006).
"The Place of History and Philosophy in the Moral Reading of the American Constitution," in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin 23, Scott Hershovitz, ed., Oxford University Press (2006).
Securing Constitutional Democracy: The Case of Autonomy, University of Chicago Press (2006).
"'There Is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence," 74 Fordham Law Review 2301 (2006).
"Constitutionalism, Judicial Review, and Progressive Change," with Linda C. McClain, review of Ran Hirschl, Towards Juristocracy, Harvard University Press (2004), 84 Texas Law Review 443 (2005).
"Judicial Review Without Judicial Supremacy: Taking the Constitution Seriously Outside the Courts," 73 Fordham Law Review 1377 (2005).
"War, Crisis, and the Constitution," with Sotirios A. Barber, in The Constitution in Wartime 232, Mark Tushnet, ed., Duke University Press (2005).
"Lawrence's Republic," 39 Tulsa Law Review 563 (2004).
"Securing Deliberative Democracy," 72 Fordham Law Review 1435 (2004).
American Constitutional Interpretation, with W. F. Murphy, S. A. Barber, & S. Macedo, 3d ed., Foundation Press (2003).
"The Missing Selves in Constitutional Self-Government," 71 Fordham Law Review 1789 (2003).
"The Lawyer as Citizen," 70 Fordham Law Review 1699 (2002).
"Fidelity to Natural Law and Natural Rights in Constitutional Interpretation," 69 Fordham Law Review 2285 (2001). Also in R. P. George, The Clash of Orthodoxies 183, ISI Press, 2001 and in Natural Law: The International Library of Essays in Law and Legal Theory, R. P. George, ed., Ashgate, 2003.
"A Further Comment on Robert P. George's 'Natural Law‘," 70 Fordham Law Review 255 (2001).
"The Natural Rights-Based Justification for Judicial Review," 69 Fordham Law Review 2119 (2001).
"The Canon and the Constitution Outside the Courts," with Sotirios A. Barber, 17 Constitutional Commentary 267 (2000).
"The Constitution Outside the Courts," 86 Cornell Law Review 215 (2000).
"Foreword," with Linda C. McClain, in Symposium on Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chicago-Kent Law Review 289 (2000).
"The Parsimony of Libertarianism," 17 Constitutional Commentary 171 (2000).
"Some Questions for Civil Society-Revivalists," with Linda C. McClain, in Symposium on Legal and Constitutional Implications of the Calls to Revive Civil Society, 75 Chicago-Kent Law Review 301 (2000).
"Fidelity, Basic Liberties, and the Specter of Lochner," 41 William & Mary Law Review 147 (1999).
"Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?" in Constitutional Stupidities, Constitutional Tragedies 162, W. N. Eskridge, Jr. & S. Levinson, eds., New York University Press (1998).
"The Right to Privacy in Sandel's Procedural Republic," with Linda C. McClain, in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy 248, A. L. Allen & M. C. Regan, Jr., eds., Oxford University Press (1998).
"We the Unconventional American People," 65 University of Chicago Law Review 1513 (1998).
"Constitutional Tragedy in Dying: Responses to Some Common Arguments Against the Constitutional Right to Die," 24 Fordham Urban Law Journal 881 (1997).
"Fidelity to Our Imperfect Constitution," 65 Fordham Law Review 1335 (1997).
"In Search of a Substantive Republic," with Linda C. McClain, review of Michael J. Sandel, Democracy's Discontent, Harvard University Press (1996) and Cass R. Sunstein, Legal Reasoning and Political Conflict, Oxford University Press (1996), 76 Texas Law Review 509 (1997).
"Original Meaning Without Originalism," 85 Georgetown Law Journal 1849 (1997).
"Securing Deliberative Autonomy," 48 Stanford Law Review 1 (1995).
"We the Exceptional American People," 11 Constitutional Commentary 355 (1994). Reprinted in Constitutional Politics: Essays on Constitution Making, Maintenance, and Change 91, S. A. Barber & R. P. George, eds., Princeton University Press (2001).
"Constructing the Substantive Constitution," 72 Texas Law Review 211 (1993).
"A Critique of John Hart Ely's Quest for the Ultimate Constitutional Interpretivism of Representative Democracy," 80 Michigan Law Review 634 (1982).
Research in Progress
Rights and Irresponsibility, book in progress (with Linda C. McClain)
“Are We All Originalists Now? I Hope Not!,” presented as the Alpheus T. Mason Lecture in Constitutional Law & Political Thought, James Madison Program in American Ideals and Institutions, Princeton University, September 19, 2002 and in the Yale Legal Theory Workshop, Yale Law School, November 13, 2003
“What's New About the New Originalism?”
“The Place of History and Tradition in the Moral Reading of the American Constitution”
“Constitutional Interpretation as Constitutional Maintenance”
“Constitutional Failure and Success”
Scholarly Presentations and Conferences
“Constructing the Substantive Constitution,” presented at Association of American Law Schools Conference on Constitutional Law, June 12-16, 1993
“Constructing the Substantive Constitution,” presented at Fordham University School of Law Faculty Work-in-Progress Colloquium, September 24, 1993
“Constructing the Substantive Constitution,” presented at New York University School of Law Colloquium on Constitutional Theory, October 5, 1993
“We the Exceptional American People,” presented at Georgetown University Law Center Discussion Group on Constitutional Law, December 4-5, 1993
“We the Exceptional American People,” presented at Princeton University Conference on Constitutional Theory, May 12-13, 1995
“Securing Deliberative Autonomy,” presented at Ohio State Legal Theory Workshop, April 8, 1994
“Securing Deliberative Autonomy,” presented at Fordham University School of Law Faculty Work-in-Progress Colloquium, March 6, 1995
“Securing Deliberative Autonomy,” presented portions at Georgetown University Law Center Discussion Group on Constitutional Law, December 9-10, 1995
“Fidelity to Our Imperfect Constitution,” presented at Fordham University School of Law Symposium on “Fidelity in Constitutional Theory,” September 20-21, 1996
“Fidelity to Our Imperfect Constitution,” presented in Western New England College School of Law Clason Speaker Series, October 3, 1996
“Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?,” presented at Association of American Law Schools Annual Meeting, panel on “Constitutional Tragedies,” January 4-7, 1997
“Constitutional Tragedy in Dying: Responses to Some Common Arguments Against the Constitutional Right to Die,” presented at Fordham Urban Law Journal Symposium on “Health Care, Poverty and Autonomy,” February 26, 1997
“In Search of a Substantive Republic,” presented portions at American Political Science Association Annual Meeting, panel on “Varieties of Constitutional Thinking for the Good Society,” August 28-31, 1997
“Some Questions for Civil-Society Revivalists,” presented at Georgetown University Law Center Discussion Group on Constitutional Law, December 6-7, 1997
“Some Questions for Civil-Society Revivalists,” presented at Boston University School of Law Faculty Workshop, March 5, 1998
“We the Unconventional American People,” presented at Fordham University School of Law Faculty Work-in-Progress Colloquium, April 7, 1998
“We the Unconventional American People,” presented at Georgetown University Law Center Discussion Group on Constitutional Law, December 5-6, 1998
“The Parsimony of Libertarianism,” presented at Association of American Law Schools Annual Meeting, panel on “The Structure of Liberty,” January 6-10, 1999
“Fidelity, Basic Liberties, and the Specter of Lochner,” presented at Conference on “Fidelity, Economic Liberty, and 1937,” February 27, 1999, William & Mary School of Law
“Some Questions for Civil Society-Revivalists,” presented at Fordham University School of Law Faculty Workshop Series, April 15, 1999
“The Canon and the Constitution Outside the Courts,” presented at Georgetown University Law Center Discussion Group on Constitutional Law, December 4-5, 1999
“The Constitution Outside the Courts,” presented at Fordham University School of Law Faculty Workshop Series, February 18, 2000
“The Constitution Outside the Courts,” presented at Harvard University Center for Ethics and the Professions Seminar, March 22, 2000
“The Natural Rights-Based Justification for Judicial Review,” presented at Fordham University School of Law Conference on “The Constitution and the Good Society,” September 22-23, 2000
“Fidelity to Natural Law and Natural Rights in Constitutional Interpretation,” presented at Fordham University School of Law Natural Law Colloquium, November 20, 2000
“Bush v. Gore: Constitutionalist Though not Constitutional?” (with Sotirios A. Barber), presented at Georgetown/PEGS Discussion Group on Constitutional Law, March 9-10, 2001
“The Lawyer as Citizen,” presented at Fordham University School of Law Legal Ethics Colloquium, November 8-9, 2001
“Taking Rights Reasonably and Responsibly,” presented at Georgetown/PEGS Discussion Group on Constitutional Law, November 30-December 1, 2001
“Are We All Originalists Now? I Hope Not!,” presented at AALS/APSA Conference on Constitutional Law, June 5-8, 2002
“Are We All Originalists Now? I Hope Not!,” presented as the Alpheus T. Mason Lecture in Constitutional Law & Political Thought, James Madison Program in American Ideals and Institutions, Princeton University, September 19, 2002
“The Missing Selves in Constitutional Self-Government,” presented in Symposium on “Theories of Constitutional Self-Government,” Fordham University School of Law, November 15, 2002
“War and the Constitution” (with Sotirios A. Barber), presented at Georgetown/PEGS Discussion Group on Constitutional Law, December 6-7, 2002
“The New Constitutional Order and the Heartening of Conservative Constitutional Aspirations,” presented at Georgetown/Maryland Discussion Group on Constitutional Law, April 4-5, 2003
Invited Participant, First Annual Constitutional Theory Conference, Vanderbilt University Law School, April 11-12, 2003
“Are We All Originalists Now? I Hope Not!,” presented at University of Illinois College of Law, September 25, 2003
“Lawrence’s Republic,” presented in Conference on the Scholarship of Frank I. Michelman, University of Tulsa College of Law, October 9-10, 2003
“Securing Deliberative Democracy,” presented at Fordham University School of Law Conference on “Rawls and the Law,” November 7-8, 2003
“Are We All Originalists Now? I Hope Not!,” presented in Yale Legal Theory Workshop, Yale Law School, November 13, 2003
“Natural Law: Its Plausible Scope and Relation to Public Reason – A Comment on Kent Greenawalt’s Lecture,” Fordham University School of Law Natural Law Colloquium, February 4, 2004
“Are We All Originalists Now? I Hope Not!,” presented in Michigan State University College of Law Faculty Workshop, May 5, 2004
“Interbranch Conflict and Constitutional Maintenance: The Case of Executive Prerogative,” Workshop on Democracy and the Rule of Law, University of Maryland, June 4, 2004
“The Place of History and Philosophy in the Moral Reading of the American Constitution,” presented at Princeton University Conference, “Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin,” September 18, 2004
“Constitutional Decision Rules,” presented at Second Annual Constitutional Theory Conference, New York University School of Law, October 22-23, 2004
“Judicial Review Without Judicial Supremacy,” presented in Symposium on “Theories of Taking the Constitution Seriously Outside the Courts,” Fordham University School of Law, November 19, 2004
“Constitutionalism, Judicial Review, and Progressive Change” (with Linda C. McClain), presented at Georgetown/Maryland Discussion Group on Constitutional Law, March 4-5, 2005
“Constitutional Interpretation: The Basic Questions” (with Sotirios A. Barber), presented in Fordham University School of Law Faculty Workshop Series, April 7, 2005
“‘There Is Only One Equal Protection Clause’: An Appreciation of Justice Stevens’s Equal Protection Jurisprudence,” presented in Conference on “The Jurisprudence of Justice Stevens,” Fordham University School of Law, September 30-October 1, 2005
“Constitutionalism, Judicial Review, and Progressive Change” (with Linda C. McClain), presented at Fordham University School of Law Faculty Workshop Series, October 28, 2005
“Securing Constitutional Democracy: The Case of Autonomy,” presented at Association of American Law Schools Annual Meeting, author meets critics panel, January 7, 2006
Moderator, conference on “The Internal Point of View in Law and Ethics,” Fordham University School of Law, February 9-10, 2006
“Securing Constitutional Democracy: The Case of Autonomy,” presented at Georgetown/Maryland Discussion Group on Constitutional Law, March 3-4, 2006
“The New Constitutional Order and the Heartening of Conservative Constitutional Aspirations,” presented in Conference on “A New Constitutional Order?,” Fordham University School of Law, March 24-25, 2006
“Securing Constitutional Democracy: The Case of Autonomy,” presented at the Third Annual Constitutional Theory Conference, University of Pennsylvania School of Law, April 7-8, 2006
“Constitutional Interpretation: The Basic Questions” (with Sotirios A. Barber), presented in Fordham University School of Law Faculty Workshop Series, September 21, 2006
“Constitutional Interpretation: The Basic Questions” (with Sotirios A. Barber), presented at Maryland Discussion Group on Constitutional Law, December 1-2, 2006
“The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution,” presented in Symposium on “Minimalism versus Perfectionism in Constitutional Theory” (on my Securing Constitutional Democracy: The Case of Autonomy and Cass R. Sunstein’s Radicals in Robes), Fordham University School of Law, December 8, 2006
“The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution,” presented at University of North Carolina School of Law, January 16, 2007
“Natural Law and Human Rights: A Comment on Michael J. Perry’s Lecture,” Fordham University School of Law Natural Law Colloquium, February 20, 2007
“The Incredible Shrinking Constitutional Theory: From the Partial Constitution to the Minimal Constitution,” presented at Boston University School of Law, February 27, 2007
“Constitutional Interpretation as Constitutional Maintenance,” Symposium on Walter F. Murphy’s Constitutional Democracy, Princeton University, March 2, 2007
“What's New About the New Originalism?” to be presented at American Political Science Association Annual Meeting, August 30-September 2, 2007
“Constitutional Failure and Success,” to be presented at Princeton University Conference on “The Limits of Constitutional Democracy,” in Spring 2008
Organization of Conferences and Symposia
Co-Organizer, Conference on "Fidelity in Constitutional Theory," held September 20-21, 1996 and published in 65 Fordham Law Review 1247-1818 (1997)
Co-Editor, Symposium on “Legal and Constitutional Implications of the Calls to Revive Civil Society,” published in 75 Chicago-Kent Law Review 289-612 (2000)
Organizer, Conference on “The Constitution and the Good Society,” held September 22-23, 2000 and published in 69 Fordham Law Review 1569-2200 (2001)
Organizer, Symposium on “Theories of Constitutional Self-Government,” held November 15, 2002 and published in 71 Fordham Law Review 1721-1825 (2003) (on Christopher L. Eisgruber’s Constitutional Self-Government (2001) and Jed Rubenfeld’s Freedom and Time: A Theory of Constitutional Self-Government (2001))
Co-Organizer, Conference on “Integrity in the Law,” held February 7, 2003 and published in 72 Fordham Law Review 251-425 (2003)
Organizer, Conference on “Rawls and the Law,” held November 7-8, 2003 and published in 72 Fordham Law Review 1381-2175 (2004)
Organizer, Symposium on “Theories of Taking the Constitution Seriously Outside the Courts,” held November 19, 2004 and published in 73 Fordham Law Review 1341-1476 (2005) (on Larry D. Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review (2004) and Lawrence G. Sager’s Justice in Plainclothes: A Theory of American Constitutional Practice (2004))
Organizer, Conference on “A New Constitutional Order?,” held March 24-25, 2006 and published in 75 Fordham Law Review 471-960 (2006)
Bar Admissions
New York (1987)
Eastern District of New York (1987)
Southern District of New York (1987)
Fifth Circuit (1990)
Professional Affiliations
American Bar Association
American Political Science Association
American Society for Political and Legal Philosophy
Association of American Law Schools
Committee on the Political Economy of the Good Society (PEGS)