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Ending The Korematsu Era: A Modern Approach, Craig Green
Ending The Korematsu Era: A Modern Approach, Craig Green
Roger Craig Green
This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.
Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …
An Intellectual History Of Judicial Activism, Roger Craig Green
An Intellectual History Of Judicial Activism, Roger Craig Green
Roger Craig Green
This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.
A second project is to explain in positive terms …
An Intellectual History Of Judicial Activism, Craig Green
An Intellectual History Of Judicial Activism, Craig Green
Roger Craig Green
This Article seeks to transform how readers view judicial activism. From newsrooms to confirmation hearings, judicial activism is a uniquely potent and popular epithet condemning judicial misconduct. By contrast, most legal scholars either eschew activism-talk as too vague, or they adopt unsound definitions of the term as (i) any exercise of judicial review or (ii) any unfavorable result. These trends have segregated normative debates over judicial activity, with solidly unfortunate results.
This Article reclaims the term judicial activism by exploring the concept of judicial activism that underlies it. One goal of this Article is to dispel widespread misperceptions about judicial …