Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
Dissenting From The Bench, Christine Venter
Dissenting From The Bench, Christine Venter
Journal Articles
This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …
Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley
Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley
Journal Articles
Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his …
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Journal Articles
In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …
Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett
Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett
Journal Articles
This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.