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Orders Without Law, Thomas P. Schmidt
Orders Without Law, Thomas P. Schmidt
Michigan Law Review
A review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck.
Amendment Creep, Jonathan L. Marshfield
Amendment Creep, Jonathan L. Marshfield
Michigan Law Review
To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
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 …
The Rule Of Law And The Judicial Process, Luke K. Cooperrider
The Rule Of Law And The Judicial Process, Luke K. Cooperrider
Michigan Law Review
An anecdote which I believe I recall from one of Professor Brogan's ·writings concerns a conversation between the archbishop and the chief justice about the relative importance of their respective powers. After the conversation had continued for some time the archbishop sought to administer the coup de grâce. "I have the advantage of you, your lordship, because you see, in the long run, the most you can say to a man is, 'You shall be hanged!' whereas it is within the functions of my office to say, 'You shall be damned!' " To this, after a moment of thought, …
Mr. Justice William Johnson And The Unenviable Dilemma, A. J. Levin
Mr. Justice William Johnson And The Unenviable Dilemma, A. J. Levin
Michigan Law Review
A policy of judicial avoidance, otherwise referred to as "judicial restraint," has clearly been the dominant trend in the United States Supreme Court since Mr. Justice Holmes began to sit upon that bench at the beginning of this century. There has been an inclination to explain this change as revealing a tendency of the Court to follow a policy of laissez-faire toward the legislative and executive departments, and to stop at this formalistic explanation of this important aspect of the judicial function. The Court's increasing awareness of its own lack of technical competence in dealing with the many complex governmental …