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Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek
Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek
Journal Articles
This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.
First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. …
New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner
New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner
Journal Articles
The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on merit, the …