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Friendly Precedent, Anthony Niblett, Albert H. Yoon
Friendly Precedent, Anthony Niblett, Albert H. Yoon
William & Mary Law Review
This Article explores which legal precedents judges choose to support their decisions.When describing the legal landscape in a written opinion, which precedent do judges gravitate toward? We examine the idea that judges are more likely to cite friendly precedent. A friendly precedent, here, is one that was delivered by Supreme Court Justices who have similar political preferences to the lower court judges delivering the opinion. In this Article, we test whether a federal Court of Appeals panel is more likely to engage with binding Supreme Court precedent when the political flavor of that precedent is aligned with the political composition …
The Living Commerce Clause: Federalism In Progressive Political Theory And The Commerce Clause After Lopez And Morrison, Eric R. Claeys
The Living Commerce Clause: Federalism In Progressive Political Theory And The Commerce Clause After Lopez And Morrison, Eric R. Claeys
William & Mary Bill of Rights Journal
"Living Constitution " ideas are most often associated with individual-rights guarantees like equal protection and due process, but they were originally developed in the early twentieth century to revolutionize the law of the structural Constitution - including the Commerce Clause. In this Article, Professor Claeys interprets Progressive political theory, which played a crucial role in legitimating the expansion of the national government. As applied to federalism, Progressive living-Constitution theory required that the Commerce Clause be interpreted as a constitutional transmitter letting the national government regulate whatever the American people deem to be a national problem. He suggests that this notion …
The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken
The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken
William & Mary Bill of Rights Journal
In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …