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Articles 1 - 30 of 42
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The Enemy Combatant Cases In Historical Context: The Inevitability Of Pragmatic Judicial Review, Robert J. Pushaw
The Enemy Combatant Cases In Historical Context: The Inevitability Of Pragmatic Judicial Review, Robert J. Pushaw
Notre Dame Law Review
No abstract provided.
The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber
The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber
Chicago-Kent Law Review
Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that …
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Indiana Law Journal
Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.
Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld
Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld
Journal of Dispute Resolution
In exchange for a speedy, economical dispute resolution process, parties that submit to binding arbitration assume the risk that an arbitrator might misapply the law. United States Supreme Court precedent and federal law favor agreements to arbitrate by limiting judicial review of arbitral awards and requiring courts to "rigorously enforce arbitration agreements." These judicial constraints support the arbitral goals of efficiency and finality by reducing the risk that arbitral awards will be vacated on appeal. To balance the risk that arbitrators may abuse this standard of review, courts have supplemented restricted judicial review with a doctrine that allows an arbitral …
Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins
Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins
Chicago-Kent Law Review
This article addresses aspects of the debate over Larry Kramer's The People Themselves and, more generally, current interest in popular constitutionalism before engaging, briefly, with the book itself. Because I find Kramer's book in general terms unexceptionable I see no particular reason to engage in the kind of lengthy critical assessment undertaken by those scholars whose disagreements with the book are pronounced. Instead I focus on three "sites" that the book traverses that I consider sites of missed opportunity. They are, first, the question of the people and the Constitution; second, the people and politics; third, the question of police …
A Discrete And Cosmopolitan Minority: The Loyalists, The Atlantic World, And The Origins Of Judicial Review, Daniel J. Hulsebosch
A Discrete And Cosmopolitan Minority: The Loyalists, The Atlantic World, And The Origins Of Judicial Review, Daniel J. Hulsebosch
Chicago-Kent Law Review
Historical interest in popular constitutionalism has enlivened the search for the origins of judicial review. Several precursors of judicial review in the state courts during the 1780s, in particular, demand explanation. If early modern Anglo-Americans did not perceive courts as enforcers of constitutional limits on legislatures, what explains these attempts by judges to curtail statutes in the "critical period" before the Philadelphia Convention? This article argues that these cases involved antiloyalist legislation and related laws that violated the Peace Treaty of 1783 or the law of nations, or otherwise obstructed diplomatic and commercial relations with the other empires of the …
Give "The People" What They Want?, Keith E. Whittington
Give "The People" What They Want?, Keith E. Whittington
Chicago-Kent Law Review
Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that …
Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding
Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding
Chicago-Kent Law Review
This paper steps outside of the historical debate about the origins and development of judicial review and focuses on the normative claim that Kramer makes near the end of Popular Constitutionalism. Should the Court, as Kramer argues, have a little more humility when it comes to judicial review and its authority over constitutional interpretation? Should the Court have more respect for legislative decision-making? These questions are addressed through a brief exploration of the ideas of a leading skeptic of judicial review, Jeremy Waldron, and a glimpse at the experiences of other rights-respecting nations.
A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz
A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz
Chicago-Kent Law Review
The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently …
Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald Leonard
Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald Leonard
Chicago-Kent Law Review
Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from …
Pre-Revolutionary Popular Constitutionalism And Larry Kramer's The People Themselves, Richard J. Ross
Pre-Revolutionary Popular Constitutionalism And Larry Kramer's The People Themselves, Richard J. Ross
Chicago-Kent Law Review
Larry Kramer's depiction of pre-Revolutionary constitutionalism rests on two dichotomies that are valuable yet exclude middle positions. First, he distinguishes between fundamental law and ordinary law. Second, he argues that pre-Revolutionary judges could play one of two roles—since they were not supreme constitutional interpreters (the first of these roles), they must have possessed no special authority to determine constitutional meanings (the second, and remaining, possibility). Both of these dichotomies obscure middle positions that capture important aspects of the pre-Revolutionary constitutional tradition. My comments briefly identify these middle positions and suggest what is at stake in recovering them.
Popular Constitutionalism As Political Law, Mark Tushnet
Popular Constitutionalism As Political Law, Mark Tushnet
Chicago-Kent Law Review
The People Themselves develops the idea that constitutional law is a special kind of law, political law. Examining some of the book's reviews, this Article explains how political law can be developed through relatively unstructured interactions among the people, political leaders in Congress and the presidency, and the courts. It argues that understanding how constitutional law as political law is developed requires, not the development of crisp analytic criteria, but close historical analysis of particular interactions. The Article identifies criteria for evaluating how popular constitutionalism compares to judicial review as a mechanism for enforcing constitutional rights, arguing that a serious …
Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger
Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger
Chicago-Kent Law Review
The phrase "popular constitutionalism" most commonly refers to the role of the public—or perhaps its elected representatives—in framing answers to particular substantive questions of constitutional interpretation. This essay explores a different aspect of the popular constitution of the United States, one that is indifferent to particular substantive questions but that forms the basic structure in which most lawmaking takes place. The United States is not merely a federal system but one with concurrent federalism, in which many issues are regulated by both state and federal governments. This norm of regulatory concurrency became entrenched in the twentieth century even as the …
Tom Delay: Popular Constitutionalist?, Neal Devins
Tom Delay: Popular Constitutionalist?, Neal Devins
Chicago-Kent Law Review
Focusing on congressional efforts to override state court decisionmaking in the Terri Schiavo case, this essay examines some of the practical problems associated with implementing Larry Kramer's popular constitutionalism. In particular, lawmakers will invoke the "will of the people" when, in fact, they are pursuing special interest politics. More than that, the Schiavo case calls attention to the increasing partisanship within Congress. This partisanship, contrary to the objectives of popular constitutionalism, makes lawmakers less likely to advance the national interest and more likely to focus their energies on their increasingly partisan base. For this very reason, today's Congress is less …
Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin
Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin
Chicago-Kent Law Review
This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in …
Constitutional Education For The People Themselves, Sheldon Nahmod
Constitutional Education For The People Themselves, Sheldon Nahmod
Chicago-Kent Law Review
Professor Nahmod, like Dean Kramer, remains profoundly disturbed by the Supreme Court's triumphalist decision in Bush v. Gore. However, he does not go so far as Dean Kramer in arguing normatively for a return to "popular constitutionalism." Rather, his more modest position is that the Supreme Court, Congress, and the President, together with the bar and the media, have a normative obligation to educate "the people themselves" in constitutional matters. This often-overlooked and vitally important "constitutional education" of the people is based on the self-government rationale of both our constitutional structure and the First Amendment. Professor Nahmod suggests how …
Comment: Popular Law And The Doubtful Case Rule, Frank I. Michelman
Comment: Popular Law And The Doubtful Case Rule, Frank I. Michelman
Chicago-Kent Law Review
A "doubtful case" or "clear mistake" rule is a rule calling for substantial deference by a reviewing court to a legislature's implicit affirmation of the constitutional probity of the statutes it enacts. Americans of the early Republic reportedly found a grounding for such a rule of judicial conduct in a conception of constitutional law as popular (not "ordinary") law. On examination, it proves difficult to trace a persuasive connection between the popular-law conception and demands for judicial adherence to a rule of deference to the implicit constitutional judgments of legislatures. Rather, the popular law conception calls for a kind of …
Response, Larry Kramer
"I'D Like To Teach The World To Sing (In Perfect Harmony)": International Judicial Dialogue And The Muses - Reflections On The Perils And The Promise Of International Judicial Dialogue, Ronald J. Krotoszynski Jr.
"I'D Like To Teach The World To Sing (In Perfect Harmony)": International Judicial Dialogue And The Muses - Reflections On The Perils And The Promise Of International Judicial Dialogue, Ronald J. Krotoszynski Jr.
Michigan Law Review
Proponents of international judicial dialogue would do well to read, and reflect upon, the conversations chronicled in Judges in Contemporary Democracy. In a lucid and candid series of interlocutions, five preeminent constitutional jurists and one highly regarded constitutional theorist ponder some of the most difficult questions about the role of a judge on a constitutional court. In particular, the participants-including Stephen Breyer (Associate Justice of the Supreme Court of the United States), Robert Badinter (former President of the Constitutional Council of France), Antonio Cassese (former President of the International Criminal Tribunal for the Former Yugoslavia), Dieter Grimm (former Justice of …
"The Last Line Of Defence For Citizens": Litigating Private Health Insurance In Chaoulli V. Quebec, Christopher P. Manfredi, Antonia Maioni
"The Last Line Of Defence For Citizens": Litigating Private Health Insurance In Chaoulli V. Quebec, Christopher P. Manfredi, Antonia Maioni
Osgoode Hall Law Journal
Litigating health care policy under the Canadian Charter of Rights and Freedoms has become an increasingly common phenomenon. The judicialization of health policy in this form raises important questions about the general phenomenon of legal mobilization. This article examines these questions in the context of Chaoulli v. Quebec (2005), in which the Supreme Court invalidated Quebec's prohibition against private insurance for medical services provided through the public health care system. Among the questions this article explores are: How do such cases get into the judicial system? Under what conditions are such claims likely to be successful? What is the impact …
Judicial Review Under The Immigration And Nationality Act: Habeas Corpus And The Coming Of Real Id (1996-2005), David M. Mcconnell
Judicial Review Under The Immigration And Nationality Act: Habeas Corpus And The Coming Of Real Id (1996-2005), David M. Mcconnell
NYLS Law Review
No abstract provided.
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
Michigan Journal of Race and Law
This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …
Section 1983 Cases In The October 2004 Term, Martin A. Schwartz
Section 1983 Cases In The October 2004 Term, Martin A. Schwartz
Touro Law Review
No abstract provided.
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
NYLS Law Review
No abstract provided.
The Maryland/Georgetown Constitutional Law Schmooze - Foreword: From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber
Maryland Law Review
No abstract provided.
Sequencing The Dna Of Comparative Constitutionalism: A Thought Experiment, Gordon Silverstein
Sequencing The Dna Of Comparative Constitutionalism: A Thought Experiment, Gordon Silverstein
Maryland Law Review
No abstract provided.
Delegation To Courts And Legitimacy, Karol Soltan
Delegation To Courts And Legitimacy, Karol Soltan
Maryland Law Review
No abstract provided.
Distinguishing Formal From Institutional Democracy, Paul Frymer
Distinguishing Formal From Institutional Democracy, Paul Frymer
Maryland Law Review
No abstract provided.
"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? Judicial Review In The United States And Germany, Peter E. Quint
"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? Judicial Review In The United States And Germany, Peter E. Quint
Maryland Law Review
No abstract provided.
Smoke, Not Fire, Neal Devins