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Full-Text Articles in Judges
With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello
With All Deliberate Speed: Nlrb V. Canning And The Case For Originalism, Adam Lamparello
Adam Lamparello
Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power …
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean
Adam Lamparello
Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …
Equilibrium, Adam Lamparello
Public Reporting Of Courts’ Performance – How Is This Best Achieved?, Matthew S.R. Palmer
Public Reporting Of Courts’ Performance – How Is This Best Achieved?, Matthew S.R. Palmer
The Hon Justice Matthew Palmer
In this address Matthew Palmer suggests: 1 The disclosure of information, probably more information than the judiciary feels comfortable disclosing, in a simple, straightforward, unvarnished way, is essential to the medium term constitutional legitimacy of the judiciary. 2 Judges, public servants and politicians speak different languages. Recognising the differences is the first step to a better understanding of, and communication with, each other and, perhaps to mitigating the potential for constitutional conflicts to get out of hand. 3 It’s not constitutionally appropriate for the executive or legislative branches of government to decide, over the wishes of the judiciary, on the …
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Adam Lamparello
Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …
The Japanese Constitution As Law And The Legitimacy Of The Supreme Court’S Constitutional Decisions: A Response To Matsui, Craig Martin
The Japanese Constitution As Law And The Legitimacy Of The Supreme Court’S Constitutional Decisions: A Response To Matsui, Craig Martin
Craig Martin
This article, from a conference at Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, “Why is the Japanese Supreme Court is so conservative?” Professor Matsui’s article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered. In this article, Borrowing from Kermit Roosevelt’s arguments on judicial …
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Edsel F Tupaz
This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …