Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Constitutional Law

PDF

Series

2017

Courts

Articles 1 - 3 of 3

Full-Text Articles in Entire DC Network

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez Nov 2017

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …


Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel Jan 2017

Historical Gloss, Constitutional Convention, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an …


Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel Jan 2017

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …