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Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

A Theory Of Federalization Doctrine, Gerald S. Dickinson

Dickinson Law Review (2017-Present)

The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, …

The Evolving Apa And The Originalist Challenge, Ronald M. Levin

Scholarship@WashULaw

This article, written for a symposium marking the seventy-fifth anniversary of the Administrative Procedure Act (APA), discusses the manifold ways in which courts have creatively interpreted the APA’s provisions on rulemaking, adjudication, and judicial review. Many of these interpretations seem to be barely, if at all, consistent with the intentions of the Act’s drafters and with standard principles of statutory construction. They can, however, be defended as pragmatic judicial efforts to keep up with the evolving needs of the regulatory state, especially in light of Congress’s persistent failure to take charge of updating the Act on its own. At this …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto

St. John's Law Review

(Excerpt)

Over seventy years ago, United States Supreme Court Justice Robert H. Jackson accurately predicted the Supreme Court’s decision in Trump v. Hawaii. As he foresaw, the Court rubberstamped a President’s purposeful discrimination against a minority religion. This brief Essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence. The Trump case involved the Court’s construction of congressional legislation apparently limiting the President’s authority, but the present Essay does not address that aspect of the opinion.

No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Pepperdine Law Review

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

A Game Theoretic Analysis Of Marbury V Madison: The Origins Of Judicial Review, Daniel R. Debutts

James Blair Historical Review

The presented research seeks to further our understanding of the Supreme Court’s formation of judicial review through an historical and game theoretic analysis. Marbury v Madison (1803) has long been hailed as a foundational case in which Chief Justice Marshall outfoxed President Jefferson in a duel of wits. Yet, despite this claim, there are surprisingly few papers that apply modern game-theory to what is widely considered a landmark—and rather iconic—supreme court case. In my paper, I review this notion and, in doing so, come to better understand inter-institutional relationships and their corresponding game theoretic strategies. More importantly, however, I suggest …

Tom Delay: Popular Constitutionalist?, Neal Devins

Neal E. Devins

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Neal E. Devins

No abstract provided.

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Neal E. Devins

No abstract provided.

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Alan J. Meese

No abstract provided.

Inconsistent Standards Of Review In Last Term's Establishment Clause Cases, Neal Devins

Neal E. Devins

No abstract provided.

Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins

Neal E. Devins

No abstract provided.

Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins

Neal E. Devins

No abstract provided.

Book Review Of The Second American Revolution, Neal Devins

Neal E. Devins

No abstract provided.

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Davison M. Douglas

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

Understanding The Politics Of Resentment: Of The Principles, Institutions, Counter-Strategies, Normative Change, And The Habits Of Heart, Tomasz Tadeusz Koncewicz

Indiana Journal of Global Legal Studies

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for …

Judicial Review And Constitutional Interpretation In Afghanistan: A Case Of Inconsistency, Shoaib Timory

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …

Liberty And Separation Of Powers In Judicial Review Of Privatized Governance Regimes, Jeffrey Kleeger

Journal of the National Association of Administrative Law Judiciary

This article examines the power difference between homeowner association (HOA) owners, members, and their governing boards. Administrative adjudication can remedy the imbalance to better secure member rights. What is necessary is a heightened standard of judicial review and a requirement to produce a comprehensive record for review. Boards enjoy an advantage in disputes with members—courts uphold board actions unless they are arbitrary and capricious. Boards also possess largely unrestricted state-delegated authority to make and enforce rules, as well as decide penalties for infractions. These clearly governmental functions are not restrained by the state action doctrine. Tools of administrative adjudication are …

Congressional Standing To Sue: The Role Of Courts And Congress In U.S. Constitutional Democracy, Vicki C. Jackson

Indiana Law Journal

In recent years, legislatures and their members have increasingly asserted standing to sue other branches of government, in controversies involving state legislators or legislatures as party litigants and in controversies involving members of or parts of the U.S. Congress. These cases present challenging questions for the federal Article III courts, whose jurisdiction has been interpreted to be bounded by “justiciability” doctrines, including that the party invoking federal court jurisdiction must have standing to do so. This Essay will focus on congressional standing, discussing case law involving claims by state legislatures or legislators to the extent they are relevant.1 It will …

Constitutional Preservation And The Judicial Review Of Partisan Gerrymanders, Edward B. Foley

Georgia Law Review

This Essay makes three contributions to the debate
over whether the Constitution contains a judicially
enforceable constrain on gerrymanders. First,it directly
tackles the Chief Justice'sfear of thejudiciaryappearing
partisan,observing that the same fear would exist if the
Constitution explicitly banned gerrymanders and
explaining why an implicit ban should be no less
judicially enforceable than an explicit ban under
Marbury v. Madison. Second, invoking the idea of
"institutional forbearance" in the important new book
How Democracies Die, the Essay shows how the
Elections Clause can be construed to protect
congressional districting from abuses of legislative
discretion committed by state legislatures. Together,
these …

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.