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Full-Text Articles in Law
The Supreme Common Law Court Of The United States, Jack M. Beermann
The Supreme Common Law Court Of The United States, Jack M. Beermann
Faculty Scholarship
The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …
The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun
The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun
Publications
The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.
Back To The Beginning: An Essay On The Court, The Law Of Democracy, And Trust, Luis Fuentes-Rohwer
Back To The Beginning: An Essay On The Court, The Law Of Democracy, And Trust, Luis Fuentes-Rohwer
Articles by Maurer Faculty
The law of democracy is in a state of incoherence. The experiment begun by Baker v. Carr showed great promise yet soon gave way to disappointment. The promise was one of modest review and respect for political choices made elsewhere. A presumption was still against judicial involvement: absent self-entrenchment or distrust of political outcomes, the Court would stay its hand. But, the reality has been far from that. The presumption has now clearly shifted, and the Court intervenes in politically-charged controversies as a matter of course. This raises a question at the heart of the law of democracy: can we …