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An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton
An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton
Benjamin H Barton
A proper understanding of the nature of the inherent powers begins with separating whether the judiciary has any constitutional power to overrule Congress from the judiciary’s power to act in the absence of congressional action, i.e. in the interstices of federal statutes and rules. Separating out these two very different types of powers helps clarify that the inherent powers of federal courts are actually both broader and shallower than have been previously thought: Congress has near plenary authority in this area, but the courts have a great deal of leeway to act when Congress has not.
An examination of the …
Book Review: Saving Law Reviews From Political Scientists, Benjamin H. Barton
Book Review: Saving Law Reviews From Political Scientists, Benjamin H. Barton
Benjamin H Barton
This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.
For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …