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2003

Judicial review

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Articles 1 - 30 of 38

Full-Text Articles in Law

The Indispensable State, Irwin P. Stotzky Oct 2003

The Indispensable State, Irwin P. Stotzky

University of Miami Law Review

No abstract provided.


Equality And The Forms Of Justice, Susan Sturm Oct 2003

Equality And The Forms Of Justice, Susan Sturm

University of Miami Law Review

No abstract provided.


Constitutional Existence Conditions And Judicial Review, Michael C. Dorf, Matthew D. Adler Oct 2003

Constitutional Existence Conditions And Judicial Review, Michael C. Dorf, Matthew D. Adler

Cornell Law Faculty Publications

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision ...


Foreword: A Silk Purse?, John T. Noonan Jr. Aug 2003

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 ...


Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole Aug 2003

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 ...


Legislating Chevron, Elizabeth Garrett Aug 2003

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 ...


The Irrepressible Myth Of Marbury, Michael Stokes Paulsen Aug 2003

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 befits the ...


Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet Aug 2003

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 Aug 2003

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 ...


Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler Jul 2003

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.


Judicial Review And International Law, Michel Troper May 2003

Judicial Review And International Law, Michel Troper

San Diego International Law Journal

According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.


Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll Feb 2003

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 ...


"Death Is Different" - Is Money Different? Criminal Punishments, Forfeitures, And Punitive Damages - Shifting Constitutional Paradigms For Assessing Proportionality, Rachel A. Van Cleave Jan 2003

"Death Is Different" - Is Money Different? Criminal Punishments, Forfeitures, And Punitive Damages - Shifting Constitutional Paradigms For Assessing Proportionality, Rachel A. Van Cleave

Publications

Part I of this Article reviews the case law regarding judicial review of both terms of imprisonment and imposition of the death penalty. In this section, I argue for consistency within this area of the law. Some jurisprudence suggests that, because "death is different," proportionality review is appropriate only in the death penalty context, and is either not required or only applies in an extremely narrow example, such as life imprisonment for a parking ticket. Part II examines Supreme Court precedent that analyzes the question of proportionality of forfeitures and punitive damages awards. In the context of forfeitures, the debate ...


The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan Jan 2003

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes ...


Who Was William Marbury?, David F. Forte Jan 2003

Who Was William Marbury?, David F. Forte

Law Faculty Articles and Essays

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.


Electing The Supreme Court, Barry Friedman, Anna Harvey Jan 2003

Electing The Supreme Court, Barry Friedman, Anna Harvey

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.


Constricting Remedies: The Rehnquist Judiciary, Congress, And Federal Power, Judith Resnik Jan 2003

Constricting Remedies: The Rehnquist Judiciary, Congress, And Federal Power, Judith Resnik

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.


Congruence And Proportionality For Congressional Enforcement Powers: Cosmetic Change Or Velvet Revolution?, Elisabeth Zoller Jan 2003

Congruence And Proportionality For Congressional Enforcement Powers: Cosmetic Change Or Velvet Revolution?, Elisabeth Zoller

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.


Justice White And Judicial Review, Philip J. Weiser Jan 2003

Justice White And Judicial Review, Philip J. Weiser

Articles

No abstract provided.


Marbury V. Madison And Modern Judicial Review, Robert F. Nagel Jan 2003

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Articles

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence ...


Democracy, Not Deference: An Egalitarian Theory Of Judicial Review, Ronald C. Den Otter Jan 2003

Democracy, Not Deference: An Egalitarian Theory Of Judicial Review, Ronald C. Den Otter

Kentucky Law Journal

No abstract provided.


The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca Jan 2003

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and ...


The True Story Of Marbury V. Madison, David F. Forte Jan 2003

The True Story Of Marbury V. Madison, David F. Forte

Law Faculty Articles and Essays

Though normally not friends of original intent or legal tradition, today's judicial "activists" like to trace their lineage back to the (purported) original judicial activist, to the great Chief Justice who was the first to persuade the Supreme Court to strike down a law of Congress.

According to this conceit, which is now the standard interpretation enshrined in countless histories and hornbooks, Marbury v. Madison was the breakthrough that demonstrated how truly powerful the judiciary could be. In this famous case, decided 200 years ago, Marshall supposedly showed that the Constitution is an elastic document or at least could ...


Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen Jan 2003

Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen

College of Law - Faculty Scholarship

This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern ...


"Sir, Yes, Sir!": The Courts, Congress And Structural Injunctions, Mark V. Tushnet Jan 2003

"Sir, Yes, Sir!": The Courts, Congress And Structural Injunctions, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This is a deeply confused book. Not that the authors' stance is unclear: They have seen federal courts in action, and they don't like what they see. Their subject is federal judicial supervision of state and local governments through injunctive decrees. The authors' position wouldn't be confused - or at least would be confused in a different way - if they dealt with injunctive decrees aimed at enforcing what the judges took to be constitutional requirements. In such cases there's at least something coherent that can be said about judges displacing democratic decision-making. Sandler and Schoenbrod, though, don't ...


Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz Jan 2003

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to ...


Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker Jan 2003

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.


A New Constitutionalism For Liberals?, Mark V. Tushnet Jan 2003

A New Constitutionalism For Liberals?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory's vision of the future is nostalgia for the past. For liberal constitutional theorists the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True ...


The Office Of The Oath, Patrick O. Gudridge Jan 2003

The Office Of The Oath, Patrick O. Gudridge

Articles

No abstract provided.


The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark Jan 2003

The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark

GW Law Faculty Publications & Other Works

Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal ...