Law Commons^™

Viewpoint: Time To Abolish The 'Inquisitorial' Grand Jury System, Rachel A. Van Cleave

Publications

The U.S. criminal justice system is long overdue for reform and the best place to start is the institution of the criminal grand jury. This archaic aspect of our system was originally intended to protect individuals suspected of a crime by including people from the community as a check on those with the power of the state to enforce the law. The grand jury no longer serves this purpose and should be abolished.

The Administrative State's Passive Virtues, Sharon B. Jacobs

Publications

Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons …

Trans-Substantivity Beyond Procedure, Suzette M. Malveaux

Publications

No abstract provided.

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 …