Law Commons^™

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}

Elucidation Strategies: A Case Study Of The U.S Supreme Court, Gordon Carroll

Belmont University Research Symposium (BURS)

The research encompassed a study on the consistency in judicial interpretations and factors that influenced U.S. Supreme Court decisions. To do this, the study explored literature and theoretical perspectives relating to judicial interpretations and decisions. The target population entailed officers in the Office of the Solicitor General for their experience in Court rulings. Interviews were conducted among ten respondents, with data collected, coded, and analyzed. The study results were then presented, discussed, and conclusions derived from them. Generally, the study found serious inconsistencies in interpretations not only between justices but also in almost similar cases. Decisions by justices were conflicting …

Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, …

Judicial Review Of Emergency Administration, Desiree Leclercq

Scholarly Works

This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies – what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration’s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor helpful during …

Supreme Court Reform And American Democracy, Daniel Epps, Ganesh Sitaraman

Scholarship@WashULaw

In "How to Save the Supreme Court," we identified the legitimacy challenge facing the Court, traced it to a set of structural flaws, and proposed novel reforms. Little more than a year later, the conversation around Supreme Court reform has only grown louder and more urgent. In this Essay, we continue that conversation by engaging with critics of our approach. The current crisis of the Supreme Court is, we argue, inextricable from the question of the Supreme Court’s proper role in our democracy. For those interested in reform, there are three distinct strategies for ensuring the Supreme Court maintains its …

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Neal E. Devins

No abstract provided.

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Inconsistent Standards Of Review In Last Term's Establishment Clause Cases, Neal Devins

Neal E. Devins

No abstract provided.

Book Review Of The Second American Revolution, Neal Devins

Neal E. Devins

No abstract provided.

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Davison M. Douglas

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Teacher For The Nation, Daniel Epps

Scholarship@WashULaw

In these brief remarks, delivered at the Hastings Law Journal's Symposium on the Jurisprudence of Justice Kennedy, I discuss Justice Kennedy's impact on American law. I reflect on the events that led to Justice Kennedy's appointment to the Supreme Court and discuss his vision of the Justices as teachers for the nation and how that vision seems to have informed his view of judicial review.

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.

When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Congressional End-Run: The Ignored Constraint On Judicial Review, Luke M. Milligan

Georgia Law Review

This Article identifies an untended connection between
the research of legal academics and political scientists. It
explains how recent developments in constitutional theory,
when read in good light, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional

interpretationfor that of the Court, but through a different
decision which cannot, as a practical if not legal matter,
be invalidated by the Court. End-runs come in several …

In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand

William & Mary Bill of Rights Journal

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

An Outcomes Analysis Of Scope Of Review Standards, Paul R. Verkuil

William & Mary Law Review

No abstract provided.

Some Alarming Aspects Of The Legacies Of Judicial Review And Of John Marshall, Stephen B. Presser

William & Mary Law Review

No abstract provided.

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Faculty Publications

No abstract provided.

Judicial Review As A Tool For The Safeguard Of Human Rights: Prospects And Problems Of The U.S. Model In Malawi, Janet Laura Banda

LLM Theses and Essays

Judicial review is a judicial action that involves the review of an inferior legislative or executive act for conformity with a higher legal norm, with the possibility that the inferior norm may be invalidated or suspended if necessary. Although judicial review has been explicitly provided for in some written post-independence African constitutions, such review has not developed into a significant principle of African juridical democracy. This lack of development can be attributed to the emergence of dictatorships in the post-colonial era. However, Malawi’s weak judiciary system was remedied by the 1994 Constitution which gave the Malawian judiciary a central position, …

Scholarly Reflections On The Court And The Constitution, Michael Ashley Stein

Faculty Publications

No abstract provided.