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Full-Text Articles in Law
Legislating Chevron, Elizabeth Garrett
Legislating Chevron, Elizabeth Garrett
Michigan Law Review
One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …
Foreword: A Silk Purse?, John T. Noonan Jr.
Foreword: A Silk Purse?, John T. Noonan Jr.
Michigan Law Review
On March 2, 1801, President John Adams appointed forty-two persons to be justices of the peace in the District of Columbia. John Marshall, doubling as Secretary of State as well as Chief Justice, failed to deliver the commissions. Adams's term expired. James Madison, Marshall's successor as Secretary of State, withheld seventeen of the commissions. In 1802, William Marbury and three other appointees to this minor office brought mandamus against Madison in the Supreme Court. Madison was ordered to show cause why the writ should not issue. Congress abolished the June sitting of the Court. Only in 1803 was the case …
Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole
Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole
Michigan Law Review
As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …
The Irrepressible Myth Of Marbury, Michael Stokes Paulsen
The Irrepressible Myth Of Marbury, Michael Stokes Paulsen
Michigan Law Review
Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …
Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet
Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet
Michigan Law Review
In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …
Alternative Forms Of Judicial Review, Mark Tushnet
Alternative Forms Of Judicial Review, Mark Tushnet
Michigan Law Review
The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Michigan Law Review
In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …