Law Commons^™

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber

Chicago-Kent Law Review

Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that …

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

ExpressO

The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply …

Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Courts Have The Final Say: Does The Doctrine Of Manifest Disregard Promote Lawful Arbitral Awards Or Disguise Unlawful Judicial Review, Lindsay Biesterfeld

Journal of Dispute Resolution

In exchange for a speedy, economical dispute resolution process, parties that submit to binding arbitration assume the risk that an arbitrator might misapply the law. United States Supreme Court precedent and federal law favor agreements to arbitrate by limiting judicial review of arbitral awards and requiring courts to "rigorously enforce arbitration agreements." These judicial constraints support the arbitral goals of efficiency and finality by reducing the risk that arbitral awards will be vacated on appeal. To balance the risk that arbitrators may abuse this standard of review, courts have supplemented restricted judicial review with a doctrine that allows an arbitral …

Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins

Chicago-Kent Law Review

This article addresses aspects of the debate over Larry Kramer's The People Themselves and, more generally, current interest in popular constitutionalism before engaging, briefly, with the book itself. Because I find Kramer's book in general terms unexceptionable I see no particular reason to engage in the kind of lengthy critical assessment undertaken by those scholars whose disagreements with the book are pronounced. Instead I focus on three "sites" that the book traverses that I consider sites of missed opportunity. They are, first, the question of the people and the Constitution; second, the people and politics; third, the question of police …

A Discrete And Cosmopolitan Minority: The Loyalists, The Atlantic World, And The Origins Of Judicial Review, Daniel J. Hulsebosch

Chicago-Kent Law Review

Historical interest in popular constitutionalism has enlivened the search for the origins of judicial review. Several precursors of judicial review in the state courts during the 1780s, in particular, demand explanation. If early modern Anglo-Americans did not perceive courts as enforcers of constitutional limits on legislatures, what explains these attempts by judges to curtail statutes in the "critical period" before the Philadelphia Convention? This article argues that these cases involved antiloyalist legislation and related laws that violated the Peace Treaty of 1783 or the law of nations, or otherwise obstructed diplomatic and commercial relations with the other empires of the …

Give "The People" What They Want?, Keith E. Whittington

Chicago-Kent Law Review

Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding

Chicago-Kent Law Review

This paper steps outside of the historical debate about the origins and development of judicial review and focuses on the normative claim that Kramer makes near the end of Popular Constitutionalism. Should the Court, as Kramer argues, have a little more humility when it comes to judicial review and its authority over constitutional interpretation? Should the Court have more respect for legislative decision-making? These questions are addressed through a brief exploration of the ideas of a leading skeptic of judicial review, Jeremy Waldron, and a glimpse at the experiences of other rights-respecting nations.

A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz

Chicago-Kent Law Review

The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently …

Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald Leonard

Chicago-Kent Law Review

Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from …

Pre-Revolutionary Popular Constitutionalism And Larry Kramer's The People Themselves, Richard J. Ross

Chicago-Kent Law Review

Larry Kramer's depiction of pre-Revolutionary constitutionalism rests on two dichotomies that are valuable yet exclude middle positions. First, he distinguishes between fundamental law and ordinary law. Second, he argues that pre-Revolutionary judges could play one of two roles—since they were not supreme constitutional interpreters (the first of these roles), they must have possessed no special authority to determine constitutional meanings (the second, and remaining, possibility). Both of these dichotomies obscure middle positions that capture important aspects of the pre-Revolutionary constitutional tradition. My comments briefly identify these middle positions and suggest what is at stake in recovering them.

Popular Constitutionalism As Political Law, Mark Tushnet

Chicago-Kent Law Review

The People Themselves develops the idea that constitutional law is a special kind of law, political law. Examining some of the book's reviews, this Article explains how political law can be developed through relatively unstructured interactions among the people, political leaders in Congress and the presidency, and the courts. It argues that understanding how constitutional law as political law is developed requires, not the development of crisp analytic criteria, but close historical analysis of particular interactions. The Article identifies criteria for evaluating how popular constitutionalism compares to judicial review as a mechanism for enforcing constitutional rights, arguing that a serious …

Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger

Chicago-Kent Law Review

The phrase "popular constitutionalism" most commonly refers to the role of the public—or perhaps its elected representatives—in framing answers to particular substantive questions of constitutional interpretation. This essay explores a different aspect of the popular constitution of the United States, one that is indifferent to particular substantive questions but that forms the basic structure in which most lawmaking takes place. The United States is not merely a federal system but one with concurrent federalism, in which many issues are regulated by both state and federal governments. This norm of regulatory concurrency became entrenched in the twentieth century even as the …

Tom Delay: Popular Constitutionalist?, Neal Devins

Chicago-Kent Law Review

Focusing on congressional efforts to override state court decisionmaking in the Terri Schiavo case, this essay examines some of the practical problems associated with implementing Larry Kramer's popular constitutionalism. In particular, lawmakers will invoke the "will of the people" when, in fact, they are pursuing special interest politics. More than that, the Schiavo case calls attention to the increasing partisanship within Congress. This partisanship, contrary to the objectives of popular constitutionalism, makes lawmakers less likely to advance the national interest and more likely to focus their energies on their increasingly partisan base. For this very reason, today's Congress is less …

Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin

Chicago-Kent Law Review

This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in …

Constitutional Education For The People Themselves, Sheldon Nahmod

Chicago-Kent Law Review

Professor Nahmod, like Dean Kramer, remains profoundly disturbed by the Supreme Court's triumphalist decision in Bush v. Gore. However, he does not go so far as Dean Kramer in arguing normatively for a return to "popular constitutionalism." Rather, his more modest position is that the Supreme Court, Congress, and the President, together with the bar and the media, have a normative obligation to educate "the people themselves" in constitutional matters. This often-overlooked and vitally important "constitutional education" of the people is based on the self-government rationale of both our constitutional structure and the First Amendment. Professor Nahmod suggests how …

Comment: Popular Law And The Doubtful Case Rule, Frank I. Michelman

Chicago-Kent Law Review

A "doubtful case" or "clear mistake" rule is a rule calling for substantial deference by a reviewing court to a legislature's implicit affirmation of the constitutional probity of the statutes it enacts. Americans of the early Republic reportedly found a grounding for such a rule of judicial conduct in a conception of constitutional law as popular (not "ordinary") law. On examination, it proves difficult to trace a persuasive connection between the popular-law conception and demands for judicial adherence to a rule of deference to the implicit constitutional judgments of legislatures. Rather, the popular law conception calls for a kind of …

Response, Larry Kramer

Chicago-Kent Law Review

No abstract provided.

"I'D Like To Teach The World To Sing (In Perfect Harmony)": International Judicial Dialogue And The Muses - Reflections On The Perils And The Promise Of International Judicial Dialogue, Ronald J. Krotoszynski Jr.

Michigan Law Review

Proponents of international judicial dialogue would do well to read, and reflect upon, the conversations chronicled in Judges in Contemporary Democracy. In a lucid and candid series of interlocutions, five preeminent constitutional jurists and one highly regarded constitutional theorist ponder some of the most difficult questions about the role of a judge on a constitutional court. In particular, the participants-including Stephen Breyer (Associate Justice of the Supreme Court of the United States), Robert Badinter (former President of the Constitutional Council of France), Antonio Cassese (former President of the International Criminal Tribunal for the Former Yugoslavia), Dieter Grimm (former Justice of …

"The Last Line Of Defence For Citizens": Litigating Private Health Insurance In Chaoulli V. Quebec, Christopher P. Manfredi, Antonia Maioni

Osgoode Hall Law Journal

Litigating health care policy under the Canadian Charter of Rights and Freedoms has become an increasingly common phenomenon. The judicialization of health policy in this form raises important questions about the general phenomenon of legal mobilization. This article examines these questions in the context of Chaoulli v. Quebec (2005), in which the Supreme Court invalidated Quebec's prohibition against private insurance for medical services provided through the public health care system. Among the questions this article explores are: How do such cases get into the judicial system? Under what conditions are such claims likely to be successful? What is the impact …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins

ExpressO

Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction …

Brief Of Law Professors David D. Cole Et Al. As Amici Curiae Supporting Petitioner (Geneva-Enforceability), Hamdan V. Rumsfield, No. 05-184 (U.S. Jan. 6, 2006), David Cole, Julie R. O'Sullivan, Carlos Manuel Vázquez

U.S. Supreme Court Briefs

No abstract provided.

Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras

Andrés Palacios Lleras

Este artículo argumenta por qué la teoría de la democracia deliberativa es problemática y paradójica, y por lo tanto inadecuada para desarrollar las instituciones democráticas contemporáneas, o para reemplazarlas por otras. Es una teoría problemática porque parte de una postura epistemológica difícilmente sostenible. Es paradójica porque a pesar de ser presentada como incluyente a nivel social, la idea de deliberación que presenta y considera como deseable, es demasiado exigente como para ser realizada por toda clase de personas; y es de hecho, elitista en este aspecto. Pero también porque señala que las instancias que están mejor diseñadas para tomar decisiones …

From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber

Faculty Scholarship

No abstract provided.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

Judicial Review Under The Immigration And Nationality Act: Habeas Corpus And The Coming Of Real Id (1996-2005), David M. Mcconnell

NYLS Law Review

No abstract provided.

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly

Michigan Journal of Race and Law

This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

NYLS Law Review

No abstract provided.