Courts Commons^™

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

Building Labor's Constitution, Kate Andrias

Faculty Scholarship

This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of …

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

Shouting Down The Voice Of The People: Political Parties, Powerful Pac's And Concerns About Corruption, Clarisa Long

Faculty Scholarship

The Federal Election Campaign Act limits the amount of financial support that political parties may give to candidates for federal office. Clarisa Long argues that these restrictions violate political parties' First Amendment rights of speech and association. Because the flow of money in the political process is a proxy for speech, the First Amendment requires that political actors have access to at least one unrestricted avenue of communication. While individuals' and PACs' First Amendment rights are protected because they may make unrestricted independent expenditures, parties do not have this opportunity. Courts have failed to protect party speech, rationalizing that the …

A Modest Proposal For A Political Court, Thomas W. Merrill

Faculty Scholarship

I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift, or whether I mean it to be taken seriously.