Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Jurisprudence (9)
- Constitutional Law (8)
- Constitution (5)
- Constitutional law (5)
- Administration (2)
-
- Administrative law (2)
- Chevron (2)
- Comparative Law (2)
- First Amendment (2)
- Human Rights Law (2)
- Judges (2)
- States (2)
- AEDPA (1)
- ATS (1)
- Abortion (1)
- Age (1)
- Alien Tort Statute (1)
- America (1)
- Anne-Marie Slaughter (1)
- Bauman (1)
- Bills (1)
- Chevron doctrine (1)
- Civil liberties (1)
- Commerce Clause (1)
- Comparative constitutional law (1)
- Comparative jurisprudence (1)
- Comparative law (1)
- Consent (1)
- Constitutional borrowing (1)
- Constitutional history (1)
- Publication Year
Articles 1 - 18 of 18
Full-Text Articles in Jurisprudence
Horizontal Federalism & The Big State "Problem", Elizabeth Beske
Horizontal Federalism & The Big State "Problem", Elizabeth Beske
Articles in Law Reviews & Other Academic Journals
Horizontal Federalism is poorly understood and increasingly important. When a big state regulates products for sale in its own markets, producers nationwide will predictably choose to modify their products to take advantage of the state’s large consumer base. Is this problematic? More importantly, does it offend the Constitution? A sharply divided Supreme Court, offering no single majority rationale, recently rejected dormant Commerce Clause challenges to California’s Proposition 12, which sets requirements for raw pork sold in California. Although the Court left California’s regulation intact, at least five Justices registered discomfort, with one dissenter expressly inviting argument under other clauses that …
Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle
Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.
To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …
Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper
Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper
Amicus Briefs
Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …
Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers
Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers
Amicus Briefs
The principle of judicial deference to agency interpretations of law has been a pillar of this Court's administrative law doctrine for more than a century. This Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), formalized one version of that principle, creating the two-step framework that is now subject to a multifaceted attack. Among other things, Chevron's opponents argue that the doctrine is at odds with the original public meaning of the Administrative Procedure Act. This is wrong, and the text and history of that landmark statute provide no basis for …
The Court And The Private Plaintiff, Elizabeth Beske
The Court And The Private Plaintiff, Elizabeth Beske
Articles in Law Reviews & Other Academic Journals
Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …
Coronavirus, Civil Libertities, And The Courts: The Case Against Suspending Judicial Review, Lindsay Wiley
Coronavirus, Civil Libertities, And The Courts: The Case Against Suspending Judicial Review, Lindsay Wiley
Articles in Law Reviews & Other Academic Journals
Introduction: For obvious reasons, local and state orders designed to help “flatten the curve” of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints …
Manufactured Emergencies, Robert Tsai
Manufactured Emergencies, Robert Tsai
Articles in Law Reviews & Other Academic Journals
Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …
Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …
Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel
Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).
He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."
I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …
Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel
Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda …
Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson
Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson
Articles in Law Reviews & Other Academic Journals
This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.
Practical politics within the US …
Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark
Articles in Law Reviews & Other Academic Journals
The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.
The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck
Articles in Law Reviews & Other Academic Journals
As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was unreasonable based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did …
Risky Business: Massachusetts V. Epa, Risk-Based Harm, And Standing In The D.C. Circuit, Amanda Leiter
Risky Business: Massachusetts V. Epa, Risk-Based Harm, And Standing In The D.C. Circuit, Amanda Leiter
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Resolving Tensions Between Copyright And The Internet, Walter Effross
Resolving Tensions Between Copyright And The Internet, Walter Effross
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel
Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Privatization Of Prisons: An Analysis Of The State Action Requirement Of The Fourteenth Amendment And 42 U.S.C. § 1983, Ira Robbins
Articles in Law Reviews & Other Academic Journals
Introduction: The privatization of prisons raises important issues with respect to liability in suits brought by inmates. If a private company operates the prison, the state likely will be directly involved in some aspects of prison life, such as using force when necessary or making quasi-judicial decisions, but it may not be directly involved in the day-to-day operation of the institution. This dichotomy of involvement may lead to con- fusion over responsibility and accountability when a violation of rights is alleged to have occurred. When a private party, as opposed to a government employee, is charged with abridging rights guaranteed …