Law Commons^™

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

Constitutionalism In The Land Of The Peaceful Thunder Dragon: The Kingdom Of Bhutan's Marbury Moment, Markus G. Puder, Ngawang Choden

Georgia Journal of International & Comparative Law

No abstract provided.

Presidential Removal: The Marbury Problem And The Madison Solutions, Jed Handelsman Shugerman

Faculty Scholarship

Marbury v. Madison is not just a puzzling judicial review precedent. It is also a puzzle about presidential removal. Why was it not taken for granted that Jefferson, Secretary of State Madison, or another executive official could simply fire Marbury? Why did Chief Justice Marshall also conclude in the unanimous decision that Marbury could not be removed?

This symposium essay summarizes recent research (especially by Jane Manners and Lev Menand) to solve this problem: an office appointed to a term of years restricted removal in the Anglo-American tradition, demonstrating that presidential removal was not a default rule. This essay also …

Les Deux Constitutions De John Marshall : Une Relecture De L’Arrêt Marbury V. Madison, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Constitutional Logic Of The Common Law, Douglas E. Edlin

Vanderbilt Journal of Transnational Law

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning …

Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan

All Faculty Scholarship

This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …

Justice Scalia And The Demise Of Environmental Law Standing, Patti A. Meeks

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

Scholarly Works

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …

Answering The Serious Constitutional Question: Ensuing Meaningful Review Of All Constitutional Claims, George Bach

West Virginia Law Review

No abstract provided.

“Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority", Paul J. Larkin Jr.

Paul J Larkin Jr.

This short essay draws a parallel between the Apostle Paul’s Letter to Philemon and Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In each instance, the author claimed a legal authority to direct someone else to act—in Philemon, to order Philemon to release the slave Onesimus; in Marbury, to order the President to comply with the law—but declined to exercise that authority in that particular case. We should praise Paul’s skillfulness in avoiding a risk of prosecution for encouraging Philemon to extend Onesimus mercy for his misdeeds and to grant …

Will What Happened In Ecuador 
Stay In Ecuador? How The Existing
 International Due Process
 Analysis May Be Ineffective In 
Keeping Fraudulent Foreign 
Judgments Out Of U.S. Courts, Christopher Lento

Richmond Journal of Global Law & Business

Recent evidence in the decades-old Chevron/Ecuador litigation suggests that the $18 billion judgment rendered against Chevron by an Ecuadorian court may have been a product of conspiracy and fraud on an almost unprecedented scale. However, these allegations overshadow fundamental problems in the method by which U.S. courts determine whether judgments rendered in foreign jurisdictions may be enforced against defendants in the United States.

Under the current jurisprudential regime, courts that are faced with the question of whether a foreign judgment is enforceable in the United States follow what is termed the “international due process analysis.” In this analysis, the court …

At What Is The Supreme Court Comparatively Advantaged?, R. George Wright

West Virginia Law Review

No abstract provided.

Chief Justice John “Marshall” Roberts – How The Chief Justice’S Majority Opinion Upholding The Federal Patient Protection And Affordable Care Act Of 2010 Evokes Chief Justice Marshall’S Decision In Marbury V. Madison, Mohamed Akram Faizer

Akram Faizer

The United States Supreme Court sustained the Federal Patient Protection and Affordable Care Act of 2010 based on Chief Justice John G. Roberts, Jr.’s majority opinion in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). The Chief Justice’s decision to uphold the Act obviated a potentially harmful confrontation with the Obama Administration in advance of the November 2012 general election. However, the decision accomplished more than merely avoid a confrontation with the executive branch. Rather, the Chief Justice’s rationale for sustaining the Act under the Taxing and Spending Power and not the Commerce Clause is a …

Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman

Stephen M. Feldman

This essay is derived from the Jerry W. Housel/Carl F. Arnold Lecture, delivered on November 3, 2012 at the University of Wyoming College of Law. The work discusses Chief Justice John Roberts's decision in the Affordable Care Act case in light of its political significance as compared to the Madison v. Marbury case. The essay briefly summarizes the ACA case and goes on to focus on Congress's commerce power. It examines the constitutional doctrine that preceded the case and then explores how Roberts changed the doctrine.

Transcript For Introduction: The Constitutional Importance Of The District Of Columbia, Jamin B. Raskin

Jamin Raskin

No abstract provided.

Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington

Schmooze 'tickets'

No abstract provided.

Judicial Review And Diversity, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.

The Rule Of Law: Its History And Meaning In Common Law, Civil Law, And Latin American Judicial Systems, Nadia E. Nedzel

Richmond Journal of Global Law & Business

“Rule of law” is an expression both praised and ridiculed by adherents of opposite political philosophies, and it is a principle claimed as the lodestar for widely differing legal theories. As much as an ideality as an ideal, the words “rule of law” have served a wide range of purposes, stretching from political sloganeering to the protection of individual rights from the power of government.

Simplifying The Prophecy Of Justiciability In Cases Concerning Foreign Affairs: A Political Act Of State Question, Deborah Azar

Richmond Journal of Global Law & Business

Justiciability doctrines in the foreign affairs arena have been described as involving large elements of prophecy. First, this article will examine the justifications and application of the political question doctrine in cases involving foreign affairs. Second, this article will discuss the justifications and application of the act of state and political question doctrines. Third, this article will analyze whether the act of state doctrine can be encompassed within the political question doctrine. Fourth, this article will propose a framework that can be applied in cases involving political questions in foreign affairs.

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …

What Oaths Meant To The Framers’ Generation: A Preliminary Sketch, Steve Sheppard

Steve Sheppard

To the Framers’ generation, oaths of office were understood as commitments, both public and personal, which stemmed from a source of morality. Recent discussions have raised concerns over whether or not the closing phrase in many oaths of office, “so help me God,” demonstrates a possible preference by the Framers for religious leaders and commitments to God. Oaths are not only an acceptance of an office itself, but also the acceptance of the office’s obligations. While oaths state an office’s obligations generally, the obligations include all that could be reasonably inferred from the nature of the office, including the use …

Selling Originalism, Jamal Greene

Faculty Scholarship

Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, …

Marbury V. Madison And Its Impact On Israeli Constitutional Law, Yoram Rabin, Arnon Gutfel

University of Miami International and Comparative Law Review

No abstract provided.

Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li

LLM Theses and Essays

When its economic increase attracts the global attention, China is also looking for a break-through in its judicial reform. The Qi v. Chen case (2001) was considered to be the Chinese version of Marbury v. Madison and gave rise to a heated discussion of the judicial review power in China. This article will analyze the doubts on the Qi case and the prospects of judicial review it indicates through comparison with Marbury v. Madison. Although Qi v. Chen opened the door for constitutional litigation, its dramatic facts and strained application of the Constitution threw it into question. Nevertheless, its effect …

Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash

Law Faculty Publications

In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove …

The Evolving Standard For The Granting Of Mandamus Relief In The Texas Supreme Court: One More Mile Marker Down The Road Of No Return, Richard E. Flint

Faculty Articles

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making.

In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must …

The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint

St. Mary's Law Journal

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making. In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

Against Interpretive Supremacy, Saikrishna Prakash, John Yoo

Michigan Law Review

Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …