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The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters
The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters
Faculty Scholarship
The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …
Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs
Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs
Faculty Scholarship
Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle …
The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell
The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young
Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young
Faculty Scholarship
No abstract provided.
Erie As A Way Of Life, Ernest A. Young
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
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 …
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young
Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young
Faculty Scholarship
Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring …
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Faculty Scholarship
No abstract provided.
Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell
Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
Faculty Scholarship
In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …
On Not Being “Not An Originalist”, H. Jefferson Powell
On Not Being “Not An Originalist”, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Preemption And Federal Common Law, Ernest A. Young
Preemption And Federal Common Law, Ernest A. Young
Faculty Scholarship
No abstract provided.
From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber
From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber
Faculty Scholarship
No abstract provided.
Universal Rights And Wrongs, Michael E. Tigar
Universal Rights And Wrongs, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai
Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai
Faculty Scholarship
From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …
Book Review: The Limits Of Judicial Power: The Supreme Court In American Politics, David S. Bogen
Book Review: The Limits Of Judicial Power: The Supreme Court In American Politics, David S. Bogen
Faculty Scholarship
No abstract provided.