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Articles 1 - 21 of 21
Full-Text Articles in Judges
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Pepperdine Law Review
Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …
No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
Pepperdine Law Review
This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Pepperdine Law Review
Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …
Hearing The States, Anthony Johnstone
Hearing The States, Anthony Johnstone
Pepperdine Law Review
The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …
Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto
Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto
Pepperdine Law Review
The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court’s decision-making process might act to reverse this loop and work to depoliticize the Court …
How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon
How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon
Pepperdine Law Review
Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …
Dicta And The Rule Of Law, Ryan S. Killian
Dicta And The Rule Of Law, Ryan S. Killian
Pepperdine Law Review
This Essay is about dicta. Like Olson, the Essay will not spend much time arguing about the definition of dicta. Rather, it analyzes rule of law issues as they pertain to dicta. Does the definition of dicta matter? Does reliance on dicta by subsequent courts raise rule of law concerns? The answer to both questions is yes.
Justice Stevens And The Emerging Law Of Sex Discrimination , John P. Wagner
Justice Stevens And The Emerging Law Of Sex Discrimination , John P. Wagner
Pepperdine Law Review
No abstract provided.
Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney
Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney
Pepperdine Law Review
Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …
Analysis Of A First Amendment Challenge To Rent-A-Judge Proceedings , Perry L. Glantz
Analysis Of A First Amendment Challenge To Rent-A-Judge Proceedings , Perry L. Glantz
Pepperdine Law Review
No abstract provided.
Foreword, Antonin Scalia
Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk
Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk
Pepperdine Law Review
No abstract provided.
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Pepperdine Law Review
No abstract provided.
"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown
"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown
Pepperdine Law Review
No abstract provided.
Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr.
Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr.
Pepperdine Law Review
No abstract provided.
Korematsu V. United States: A Tragedy Hopefully Never To Be Repeated , Erwin Chemerinsky
Korematsu V. United States: A Tragedy Hopefully Never To Be Repeated , Erwin Chemerinsky
Pepperdine Law Review
No abstract provided.
A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald
A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald
Pepperdine Law Review
A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.
Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar
Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar
Pepperdine Law Review
The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.
The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff
The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff
Pepperdine Law Review
No abstract provided.
Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso
Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso
Pepperdine Law Review
No abstract provided.
The Rule Of Law For Judges, Thomas M. Reavley
The Rule Of Law For Judges, Thomas M. Reavley
Pepperdine Law Review
No abstract provided.