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Articles 1 - 13 of 13
Full-Text Articles in Law
Grains Of Sand Or Butterfly Effect: Standing, The Legitimacy Of Precedent, And Reflections On Hollingsworth And Windsor, Maxwell L. Stearns
Grains Of Sand Or Butterfly Effect: Standing, The Legitimacy Of Precedent, And Reflections On Hollingsworth And Windsor, Maxwell L. Stearns
Maxwell L. Stearns
One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model. In a …
Private-Rights Litigation And The Normative Foundations Of Durable Constitutional Precedent, Maxwell L. Stearns
Private-Rights Litigation And The Normative Foundations Of Durable Constitutional Precedent, Maxwell L. Stearns
Maxwell L. Stearns
This chapter advances a simple thesis that runs counter to much public-law scholarship. Holding all else constant, the more difficult, or costly, constitutional rulings are to obtain, the more durable the resulting precedent; conversely, the easier, or cheaper, such rulings are to obtain, the less durable the resulting precedent. Most public-law scholarship implicitly rests on the opposite premise that the relative ease or difficulty of obtaining constitutional rulings should correlate positively, not negatively, with the relative importance or unimportance of the asserted right. Within a public-rights adjudicatory model, important constitutional rights justify relaxing traditional constraints on constitutional decisionmaking, including ripeness, …
Direct (Anti-)Democracy, Maxwell L. Stearns
Direct (Anti-)Democracy, Maxwell L. Stearns
Maxwell L. Stearns
Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken. Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article …
An Introduction To Social Choice, Maxwell L. Stearns
An Introduction To Social Choice, Maxwell L. Stearns
Maxwell L. Stearns
Social choice studies the differing implications of the concept of rationality (or transitivity) for individuals versus groups under specified conditions and the significance of these differences in various institutional decision making contexts. This introductory chapter on social choice for the Elgar Handbook on Public Choice (Elgar Publishing Company, Dan Farber and Anne O’Connell, editors), introduces the basic framework of social choice, considers the implications of social choice for various legal and policy contexts, and provides a framework for evaluating a range of normative proposals grounded in social choice for reforming lawmaking institutions. After a brief introduction, part II introduces the …
Appellate Courts Inside And Out, Maxwell L. Stearns
Appellate Courts Inside And Out, Maxwell L. Stearns
Maxwell L. Stearns
Commentary on "Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeal" by Jonathan Matthew Cohen. Ann Arbor, University of Michigan Press, 2002.
Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns
Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
Maternal Duties During Pregnancy: Toward A Conceptual Framework, Maxwell L. Stearns
Maternal Duties During Pregnancy: Toward A Conceptual Framework, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
The Public Choice Case Against The Item Veto, Maxwell L. Stearns
The Public Choice Case Against The Item Veto, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
Standing And Social Choice: Historical Evidence, Maxwell L. Stearns
Standing And Social Choice: Historical Evidence, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
Standing Back From The Forest: Justiciability And Social Choice, Maxwell L. Stearns
Standing Back From The Forest: Justiciability And Social Choice, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
The Remand That Made The Court Expand, Maxwell L. Stearns
The Remand That Made The Court Expand, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
Why Should Lawyers Care About Institutional Data On Courts?, Maxwell L. Stearns
Why Should Lawyers Care About Institutional Data On Courts?, Maxwell L. Stearns
Maxwell L. Stearns
In the “U.S. Supreme Court Judicial Data Base: providing new insights into the Courts,” Professors Harold Spaeth and Jeffrey Segal provide a brief and valuable overview of the two Supreme Court databases, with a particular focus on how those databases might be of use to those with professional legal training, namely law professors, lawyers, and perhaps also judges. In this comment, I will describe what I consider to be the limitations, and uses, of such data for those of us trained in law, and who most likely will lack the rigorous social science background familiar to most present users of …
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
Maxwell L. Stearns
The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the …