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Core And Periphery In Constitutional Law, R. George Wright
Core And Periphery In Constitutional Law, R. George Wright
William & Mary Law Review Online
This paper embarks on an excursion through a number of the most vital constitutional rights cases, and other contexts as well, and seeks to show that the recurring judicial attempts to distinguish between core and peripheral areas within any given broad constitutional right are unnecessary and distracting. Intriguingly, the case for this conclusion varies significantly depending upon the nature of the general constitutional right in question. But the overall lesson is that courts should abandon their attempts to distinguish between core and peripheral areas of any given broad constitutional right. Courts should instead focus—directly or indirectly—on their best assessment of …
In Search Of A Legislative Leviathan: Judicial Enforcement Of Senate Nominations Rules, Sam Simon
In Search Of A Legislative Leviathan: Judicial Enforcement Of Senate Nominations Rules, Sam Simon
William & Mary Bill of Rights Journal
The Senate is trapped in a collective action problem. Both political parties would be better off if the Senate could consistently confirm judicial nominees on a reasonable timeline. However, when the party that controls the presidency does not control the Senate, Senate leaders face strong incentives to block nominees using whatever excuse they can find. Any Senate majority considering playing nice with a president of the opposing party runs the risk that its kindness will not be repaid when the tables are turned. The only rational strategy is to apply what scholars have called the Iron Rule: do unto others …
On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill
On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill
William & Mary Bill of Rights Journal
This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …
Answering The Political Question: Demonstrating An Intent-Based Framework For Partisan Gerrymandering, Kyle H. Keraga
Answering The Political Question: Demonstrating An Intent-Based Framework For Partisan Gerrymandering, Kyle H. Keraga
William & Mary Bill of Rights Journal
Partisan gerrymandering is widely recognized as a threat to the foundations of our democracy. Political parties with control over their state legislatures routinely leverage the redistricting process to entrench themselves in power—suppressing political adversaries, chilling public participation, and polarizing the electorate. Nevertheless, despite a persistent recognition that partisan gerrymandering is incompatible with basic democratic principles, the Supreme Court struggled to develop a stable and consistent doctrinal approach to this issue, even as reliable standards emerged to adjudicate malapportionment and racial gerrymandering claims. Recently, in Rucho v. Common Cause, the Court abandoned the search entirely, holding that partisan gerrymandering is …
Stephen Breyer, The Authority Of The Court And The Peril Of Politics, Harvard University Press, 2021, Louis Fisher
Stephen Breyer, The Authority Of The Court And The Peril Of Politics, Harvard University Press, 2021, Louis Fisher
William & Mary Law Review Online
Louis Fisher reviewing Stephen Breyer's The Authority of the Court and the Peril of Politics (Harvard University Press, 2021).