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Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger
Power Transitions In A Troubled Democracy, Peter L. Strauss, Gillian E. Metzger
Faculty Scholarship
Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership …
A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger
A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger
Faculty Scholarship
What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …