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Full-Text Articles in Law
Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle
Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.
To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …
Foreword, Stephen Wermiel
Foreword, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
It is an honor and a pleasure to help the American UniversityLegislationandPolicy Brief carry on its fine tradition of scholarly inquiry into important issues facing the nation, the legislatures and the public policy arena. AULPB is an important forum within WCL for student authors to examine cutting edge, timely issues. It is also a focal point, beyond the bounds of the WCL campus, for authors to consider a broad range of pressing issues that combine law and policy questions.
What Would Justice Brennan Say To Justice Thomas, Stephen Wermiel
What Would Justice Brennan Say To Justice Thomas, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Take Inventory Each Year, David Spratt
Take Inventory Each Year, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
A Tribute To Judge Patricia Wald, Jeffrey Lubbers
A Tribute To Judge Patricia Wald, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers
Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Court Capture, Jonas Anderson
Court Capture, Jonas Anderson
Articles in Law Reviews & Other Academic Journals
Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.
This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …
Adrenaline Of Excellence: The Career Of Judge Gerald Bruce Lee, Claudio Grossman, Andrew Popper
Adrenaline Of Excellence: The Career Of Judge Gerald Bruce Lee, Claudio Grossman, Andrew Popper
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Political Question Disconnects, Elizabeth Earle Beske
Political Question Disconnects, Elizabeth Earle Beske
Articles in Law Reviews & Other Academic Journals
No abstract provided.
In Search Of The Real Roberts Court, Stephen Wermiel
In Search Of The Real Roberts Court, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost
Articles in Law Reviews & Other Academic Journals
The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …
Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost
Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost
Articles in Law Reviews & Other Academic Journals
In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.
This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …
Judicial Retirement And Return To Practice, Mary Clark
Judicial Retirement And Return To Practice, Mary Clark
Articles in Law Reviews & Other Academic Journals
This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.
This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …
Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark
Articles in Law Reviews & Other Academic Journals
The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.
The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …
Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers
Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …
Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers
Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson
Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Defending The Majoritarian Court, Amanda Frost
Defending The Majoritarian Court, Amanda Frost
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow
The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow
Articles in Law Reviews & Other Academic Journals
This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …
Misplaced Modifiers - Say What, David Spratt
Misplaced Modifiers - Say What, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Human Rights Hero - Sandra Day O'Connor, Stephen Wermiel, Michael S. Greco
Human Rights Hero - Sandra Day O'Connor, Stephen Wermiel, Michael S. Greco
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark
Articles in Law Reviews & Other Academic Journals
In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …
The State Secrets Privilege And Separation Of Powers, Amanda Frost
The State Secrets Privilege And Separation Of Powers, Amanda Frost
Articles in Law Reviews & Other Academic Journals
Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to …
Keeping Up Appearances: A Process-Oriented Approach To Judicial Recusal, Amanda Frost
Keeping Up Appearances: A Process-Oriented Approach To Judicial Recusal, Amanda Frost
Articles in Law Reviews & Other Academic Journals
No abstract provided.
One Man's Token Is Another Woman's Breakthrough - The Appointment Of The First Women Federal Judges, Mary Clark
One Man's Token Is Another Woman's Breakthrough - The Appointment Of The First Women Federal Judges, Mary Clark
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Alternative Approaches To Judicial Review Of Social Security Disability Cases, Jeffrey Lubbers
Alternative Approaches To Judicial Review Of Social Security Disability Cases, Jeffrey Lubbers
Articles in Law Reviews & Other Academic Journals
For many years, Congress has had various bills before it to create alternatives to the current practice of Article III review (in district courts) of Social Security disability cases. This report, prepared initially for the Social Security Advisory Board, reviews the various legislative proposals and statutory alternatives such as the Veterans Administration administrative/judicial review structure. It concludes that, on balance, review before an Article I court (with Court of Appeals review limited to purely legal issues) has numerous advantages over the present system. These advantages include improvements in the accuracy and consistency of results (the federal district courts have vastly …
Developing A Full And Fair Evidentiary Record In A Nonadversary Setting: Two Proposals For Improving Social Security Disability Adjudications, Jeffrey Lubbers, Frank S. Bloch, Paul R. Verkuil
Developing A Full And Fair Evidentiary Record In A Nonadversary Setting: Two Proposals For Improving Social Security Disability Adjudications, Jeffrey Lubbers, Frank S. Bloch, Paul R. Verkuil
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Clarence Thomas: The First Ten Years Looking For Consistency, Mark Niles
Clarence Thomas: The First Ten Years Looking For Consistency, Mark Niles
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Changing The Face Of The Law: How Women's Advocacy Groups Put Women On The Federal Judicial Appointments Agenda, Mary Clark
Articles in Law Reviews & Other Academic Journals
No abstract provided.