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Articles 1 - 3 of 3
Full-Text Articles in Jurisprudence
Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh
Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh
Washington Law Review Online
Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …
Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer
Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer
Articles
An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …
“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer
“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer
Washington Law Review Online
For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …