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Full-Text Articles in Law
Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel
Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel
Publications
Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.
Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …
Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom
Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom
Publications
No abstract provided.
Marbury V. Madison And Modern Judicial Review, Robert F. Nagel
Marbury V. Madison And Modern Judicial Review, Robert F. Nagel
Publications
This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …
Judicial Supremacy And The Settlement Function, Robert F. Nagel
Judicial Supremacy And The Settlement Function, Robert F. Nagel
Publications
No abstract provided.