Courts Commons^™

Courts In Conversation, Thomas P. Schmidt

Faculty Scholarship

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Of Great Use And Interest: Constitutional Governance And Judicial Power- The History Of The California Supreme Court, Donald Warner

The Journal of Appellate Practice and Process

No abstract provided.

Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Publications

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …

Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …