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Full-Text Articles in Law
Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos
Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos
Faculty Scholarship
This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.
In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …
Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel
Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel
Faculty Scholarship
The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …
Doing Gloss, Curtis A. Bradley
Doing Gloss, Curtis A. Bradley
Faculty Scholarship
It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez
Introduction To Agora: Reflections On Zivotofsky V. Kerry, Curtis A. Bradley, Carlos M. Vazquez
Faculty Scholarship
No abstract provided.
Treaty Termination And Historical Gloss, Curtis A. Bradley
Treaty Termination And Historical Gloss, Curtis A. Bradley
Faculty Scholarship
The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what …
What Happened In Iowa?, David Pozen
What Happened In Iowa?, David Pozen
Faculty Scholarship
Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).
November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …
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" …
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young
Faculty Scholarship
No abstract provided.
Law, Politics, And Judicial Review: A Comment On Hasen, Guy-Uriel Charles
Law, Politics, And Judicial Review: A Comment On Hasen, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
Law And Judicial Duty, Philip A. Hamburger
Law And Judicial Duty, Philip A. Hamburger
Faculty Scholarship
Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."
He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …
From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss
From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss
Faculty Scholarship
In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure …
Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan
Judicial Review And The National Political Process: A Functional Reconsideration Of The Role Of The Supreme Court, Henry Paul Monaghan
Faculty Scholarship
Imagine a cold morning early in February. Slowly sipping coffee in an effort to awaken fully, you are reading through the Supreme Court advance sheets. You come across the following brief opinion:
PER CURIAM. Fisher v. Rye Co., No. 81-1, and First Savings Bank v. Smith, No. 81-2. These petitions for certiorari have been consolidated for disposition in a single opin-ion. No. 81-1 challenges an Executive Order that, in an effort to combat gender-based discrimination, requires government contractors to adopt affirmative action programs. No argument is made that the Executive Order is authorized by statute. Concluding that the …