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Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott
Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott
The Ohio State University Moritz College of Law Working Paper Series
We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
University of San Diego Public Law and Legal Theory Research Paper Series
This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
University of San Diego Public Law and Legal Theory Research Paper Series
In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …