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Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky Aug 2019

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed ...


“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman May 2018

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Howard M Wasserman

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all ...


African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga Mar 2018

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias ...


African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga Mar 2018

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa ...


Judicial Review And Non-Enforcement At The Founding, Matthew Steilen Nov 2017

Judicial Review And Non-Enforcement At The Founding, Matthew Steilen

Matthew Steilen

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this ...


Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow Feb 2016

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

M. C. Mirow

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy ...


Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones Dec 2015

Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones

Brian Christopher Jones

Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a "Constitution". Difficulties arise because over ...


The Role Of Courts In Improving The Legislative Process, Ittai Bar-Siman-Tov Nov 2015

The Role Of Courts In Improving The Legislative Process, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

In recent years, there has been growing and widespread discontent with the state of the legislative process in many legislatures. At the same time, there is an emerging trend of courts exercising judicial review of the legislative process. Against this backdrop, this article explores the question of what can be the role of courts in efforts to improve the legislative process. The article offers a fresh perspective on the problems in the legislative process and their causes. It then develops a novel argument – that does not rest upon a cynical view of legislatures, nor on a rosy picture of courts ...


ג'ון הארט גרוניס?: פסיקתו של הנשיא גרוניס לאור התיאוריה החוקתית של אילי (John Hart Grunis?: The Jurisprudence Of Chief Justice Grunis In Light Of Ely's Constitutional Theory), Ittai Bar-Siman-Tov Nov 2015

ג'ון הארט גרוניס?: פסיקתו של הנשיא גרוניס לאור התיאוריה החוקתית של אילי (John Hart Grunis?: The Jurisprudence Of Chief Justice Grunis In Light Of Ely's Constitutional Theory), Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article analyzes the jurisprudence of CJ Grunis, the President of the Supreme Court of Israel, in light of John Hart Ely's constitutional theory. In an earlier case, during CJ Barak's Presidency, Justice Grunis publicly endorsed Ely's constitutional theory—which has put him at odds with the previous two Presidents of the Court, CJs Barak and Beinisch. Against this backdrop, this Article examines whether (or to what extent) Ely's theory can explain Justice Grunis's decisions as President of the Court. The Article argues that Ely's theory provides a more promising focal-point for evaluating President ...


Section 1983 Cases In The October 2004 Term, Martin A. Schwartz Oct 2015

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin Oct 2015

Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin

Richard Haigh

In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the ...


The Coherentism Of Democracy And Distrust, Michael C. Dorf Feb 2015

The Coherentism Of Democracy And Distrust, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf Feb 2015

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Michael C. Dorf

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct ...


Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler Feb 2015

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.


Proportionality And The Relevance Of Rights, Jud Mathews Dec 2014

Proportionality And The Relevance Of Rights, Jud Mathews

Jud Mathews

It is now well known that proportionality-based balancing has become the dominant approach to the judicial review of legislation that limits constitutional rights. But has proportionality outgrown rights? In other words, are specific constitutional rights — as opposed to, say, a general right to proportional treatment — necessary, or desirable, once courts have adopted proportionality analysis? This issue animates the debate between Professors Luc Tremblay and Matthias Klatt in the International Journal of Constitutional Law. In this comment, I weigh in on the Tremblay/Klatt debate, and make a case for the continued relevance of rights in proportionality balancing.


Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer Sep 2014

Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer

Richard C. Boldt

No abstract provided.


Judicial Enforcement Of The Establishment Clause, Richard W. Garnett Nov 2013

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Richard W Garnett

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.


Judicial Review, Local Values, And Pluralism, Richard W. Garnett Nov 2013

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Richard W Garnett

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and ...


Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram Oct 2013

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual ...


Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee Aug 2013

Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord ...


Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin Jul 2013

Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin

Chien-Chih Lin

Whether, and to what extent, the practice of judicial review in the United States is counter-majoritarian has been contentiously debated since its inception. Yet, whether judicial review in nascent democracies functions in the same way has not been lucidly articulated. Based on docket records, agenda setting, and case studies of the Constitutional Court in Taiwan, this paper suggests that judicial review in Taiwan is majoritarian, rather than counter-majoritarian. Specifically, the Constitutional Court is more majoritarian in the field of fundamental rights than it is in separation-of-powers cases. This finding is contradictory to conventional wisdom since high courts in new democracies ...


Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller Jan 2013

Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller

Russell A. Miller

No abstract provided.


Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov Dec 2012

Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article deals with a predicament inherent in judicial review: Under the traditional view, judicial declarations of unconstitutionality apply retrospectively, meaning that the law is treated as void from its inception — as if it was never enacted. This, however, means nullifying all the legal arrangements, rights, interests, and obligations that were established under its authority, which can have far-reaching ramifications for both public and private interests. The Article explores the Israeli Supreme Court's approach for dealing with potential negative consequences of retrospective voidance of statutes. It focuses on three main remedial strategies for tempering the temporal effects of invalidating ...


Introductory Remarks: The Burden Of Judicial Bypass Proceedings , Ann Shalleck Oct 2012

Introductory Remarks: The Burden Of Judicial Bypass Proceedings , Ann Shalleck

Ann Shalleck

No abstract provided.


Obama Didn't Deny Court's Right Of Review, Alan E. Garfield Apr 2012

Obama Didn't Deny Court's Right Of Review, Alan E. Garfield

Alan E Garfield

No abstract provided.


Lincoln, Marshall And The Judicial Role, David F. Forte Apr 2012

Lincoln, Marshall And The Judicial Role, David F. Forte

David F. Forte

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice ...


Natural Law And The Limits To Judicial Review, David F. Forte Apr 2012

Natural Law And The Limits To Judicial Review, David F. Forte

David F. Forte

The very premise of judicial review in America is rooted in the structure of natural law. Judges have no authority to make any kind of law. They can only enforce and apply authoritatively passed positive law. But if the positive law has not been enacted, either in form or substance, without proper authority, then if the judge should enforce such a law, he would in fact be making new positive law, and would be acting outside of his authority.


John Marshall And The Moral Basis For Judicial Review, David F. Forte Apr 2012

John Marshall And The Moral Basis For Judicial Review, David F. Forte

David F. Forte

During the last two decades, many observers have been disappointed in some of the appointments to the federal bench and in the judicial philosophies some judges have brought with them. But if we turn to the source of our constitutional order, we would find in the example of John Marshall the moral basis for the judicial craft.


The True Story Of Marbury V. Madison, David F. Forte Apr 2012

The True Story Of Marbury V. Madison, David F. Forte

David F. Forte

Though normally not friends of original intent or legal tradition, today's judicial "activists" like to trace their lineage back to the (purported) original judicial activist, to the great Chief Justice who was the first to persuade the Supreme Court to strike down a law of Congress. According to this conceit, which is now the standard interpretation enshrined in countless histories and hornbooks, Marbury v. Madison was the breakthrough that demonstrated how truly powerful the judiciary could be. In this famous case, decided 200 years ago, Marshall supposedly showed that the Constitution is an elastic document or at least could ...


Semiprocedural Judicial Review, Ittai Bar-Siman-Tov Dec 2011

Semiprocedural Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial ...