Jurisprudence Commons^™

Justiciability, Federalism, And The Administrative State, Zachary D. Clopton

Cornell Law Review

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court …

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Cornell Law Faculty Publications

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

The Tropicalization Of Proportionality Balancing: The Colombian And Mexican Examples, Luisa Conesa

Cornell Law School Inter-University Graduate Student Conference Papers

In “The Tropicalization of Proportionality Balancing: the Colombian and Mexican Examples” the author analyzes how the German based proportionality balancing test was exported to Latin America, by studying the Colombian Constitutional Court and the Mexican Supreme Court. This work is guided by the following questions: what is proportionality balancing? How has it been used by the Colombian and Mexican jurisprudences and what are its influences? Do the Courts cite other jurisdictions when using the test? Have they imported a traditional European test? Or, have they “tropicalized” it?

The study of the Latin American examples leads to the conclusion that the …

Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver

Cornell Law Faculty Publications

Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Dicta And Article Iii, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

The Reapportionment Cases: Cognitive Lag, The Malady And Its Cure, E. F. Roberts, Paul T. Shultz Iii

Cornell Law Faculty Publications

The reapportionment cases have been considered by many to be the product of a liberal, activist Court which is endeavoring to reshape America’s political life according to its own views. The authors of this article assert that, to the contrary, the Court actually is reacting to the incontrovertible fact of the modern predominance of urban complexities which have rendered inappropriate our older political boundaries. In this sense, they consider the Court’s decisions conservative rather than liberal- because the Court’s purpose is to maintain a version of federalism along state boundaries which may have become outmoded even before the Court entered …