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Jurisprudence Commons

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Articles 1 - 6 of 6

Full-Text Articles in Jurisprudence

Stare Decisis And Constitutional Text, Jonathan F. Mitchell Oct 2011

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the ...


Limiting Legislative Courts: Protecting Article Iii From Article I Evisceration, Kenneth G. Coffin Jan 2011

Limiting Legislative Courts: Protecting Article Iii From Article I Evisceration, Kenneth G. Coffin

Barry Law Review

This article will analyze possible limitations on Congress’ Article I power, concluding that separation of powers jurisprudence offers a practical and appropriate manner in which to check Congressional overreach. Part I traces the development of Congress’ power to create Article I courts. Part II critically evaluates the Northern Pipeline opinions, ultimately finding neither Justice Brennan’s nor Justice White’s conflicting opinions satisfactory. Part III briefly discusses several possible limiting principles on Article I courts before concluding that separation of powers jurisprudence offers a meaningful and pragmatic solution to the problem. Part IV tests the practicality of this new separation ...


Standing On A Spectrum: Third Party Standing In The United States, Canada, And Australia, Gwendolyn Mckee Jan 2011

Standing On A Spectrum: Third Party Standing In The United States, Canada, And Australia, Gwendolyn Mckee

Barry Law Review

This article examines third party standing cases in the United States, Canada, and Australia. It demonstrates that third party standing can only be understood with reference to the role of modern courts in broad-based, constitutional style rights protection. This type of protection has been the main factor driving courts to create exceptions to the traditional standing requirements. It is only once these exceptions have been established that a court begins to consider allowing third party standing in cases that do not involve rights. The effects of this theory can be seen in the three countries examined in this article.


The Japanese Constitution As Law And The Legitimacy Of The Supreme Court's Constitutional Decisions: A Response To Matsui, Craig Martin Jan 2011

The Japanese Constitution As Law And The Legitimacy Of The Supreme Court's Constitutional Decisions: A Response To Matsui, Craig Martin

Washington University Law Review

The Article focuses on the author's comments to the article of Professor Shigenori Matsui about the conservative jurisprudence of the Japanese Supreme Court. It outlines the conduct of the Japanese Supreme Court as well as the legitimacy of its constitutional decisions. It describes an approach in the application of proportionality principle in the judicial review of fundamental constitutional rights.


Judicialization Of Politics And The Japanese Supreme Court, Tokujin Matsudaira Jan 2011

Judicialization Of Politics And The Japanese Supreme Court, Tokujin Matsudaira

Washington University Law Review

The Article focuses on the author's comments to the article of Professor Shigenori Matsui which stresses the conservatism of the Japanese Supreme Court. It outlines the reluctance of the Japanese Supreme Court to judicialize politics through constitutional adjudication. It highlights the standards of judicial review which have been adopted from the German conceptual jurisprudence.


Stipulating The Law, Gary Lawson Jan 2011

Stipulating The Law, Gary Lawson

Michigan Law Review

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the president. Four Justices strongly challenged the majority's willingness to accept what amounts to a stipulation by the parties to a controlling issue of law. As a general matter the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought ...