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Articles 1 - 17 of 17

Full-Text Articles in Law

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters Oct 2001

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters

All Faculty Scholarship

This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend ...


The Judiciary In The United States: A Search For Fairness, Independence And Competence, Stephen J. Shapiro Apr 2001

The Judiciary In The United States: A Search For Fairness, Independence And Competence, Stephen J. Shapiro

All Faculty Scholarship

Alexander Hamilton referred to the judiciary as “the least dangerous branch” because it could neither make nor enforce the law without help from the other two branches of government. In the years since then, however, courts and judges in the United States have assumed a much more prominent role in society. American judges preside over criminal trials and sentence those convicted, decide all kinds of civil disputes, both large and small, and make important decisions involving families, such as child custody. They have also become the primary guarantors of the civil and constitutional rights of American citizens.

The case of ...


How Democratic Are Initiatives?, Richard B. Collins Jan 2001

How Democratic Are Initiatives?, Richard B. Collins

Articles

No abstract provided.


The Search For Incontrovertible Visual Evidence, Paul F. Campos Jan 2001

The Search For Incontrovertible Visual Evidence, Paul F. Campos

Articles

No abstract provided.


Remanding To Congress: The Supreme Court's New ʺOn The Recordʺ Constitutional Review Of Federal Statutes, A. Christopher Bryant, Timothy J. Simeone Jan 2001

Remanding To Congress: The Supreme Court's New ʺOn The Recordʺ Constitutional Review Of Federal Statutes, A. Christopher Bryant, Timothy J. Simeone

Faculty Articles and Other Publications

In recent years, the fate of federal statutes has increasingly turned on the contents of their formal legislative records. The Supreme Court has shown a new willingness to find statutes unconstitutional because their legislative records do not support the factual judgments that justify congressional action. In this Article, Professors Bryant and Simeone trace the development of the trend toward increased judicial scrutiny of legislative records in recent Supreme Court rulings on the constitutionality of federal statutes. They then critique the Court's new approach, arguing that it is not only inconsistent with precedent, but also fundamentally ill advised, most importantly ...


Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet Jan 2001

Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. Second, one ...


"Shut Up He Explained", Mark V. Tushnet Jan 2001

"Shut Up He Explained", Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and ...


The Original Meaning Of The Commerce Clause, Randy E. Barnett Jan 2001

The Original Meaning Of The Commerce Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where ...


Constitution-Talk And Justice-Talk, Mark V. Tushnet Jan 2001

Constitution-Talk And Justice-Talk, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Inside the courts, one might distinguish between constitution-talk and justice-talk on the ground that the former, but not the latter, results in enforceable legal judgments. So, inside the courts, we might interpret the Constitution with justice in mind, but what we do is produce legally enforceable judgments. Outside the courts, however, it might seem that all we do is interpret and talk. It is not immediately obvious that cloaking justice-talk as constitution-talk outside the courts has much rhetorical force. As I will argue, the fact that invoking the Constitution outside the courts, in the course of discussing justice, does have ...


Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart Jan 2001

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

Articles

No abstract provided.


Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight Jan 2001

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.


The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch Jan 2001

The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the ...


The History Of The Judicial Review Of Administrative Power And The Future Of Regulatory Governance, John J. Coughlin Jan 2001

The History Of The Judicial Review Of Administrative Power And The Future Of Regulatory Governance, John J. Coughlin

Journal Articles

No abstract provided.


The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine Jan 2001

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements ...


Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine Jan 2001

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial ...


Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan Jan 2001

Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan

Articles

The topic of this Essay is not one Terry Sandalow has worked on, but he got me started on it by organizing, with Eric Stein, the Bellagio Conference on comparative constitutional economic integration in the United States and the European Community. For that, and for thirty-three years during which he has been an unfailingly stimulating and supportive colleague, Dean, and friend, I am deeply grateful.


Defending Congress, Seth P. Waxman Jan 2001

Defending Congress, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of government ...