Law and Politics Commons^™

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

All Faculty Scholarship

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …

The Supreme Court's Take On Immigration In Nken V. Holder: Reaffirming A Traditional Standard That Affords Courts More Time And Flexibility To Decide Immigration Appeals Before Deporting Aliens, Elizaveta Kabanova

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Accountability In The Administrative Law Judiciary: The Right And The Wrong Kind, Edwin L. Felter Jr

Journal of the National Association of Administrative Law Judiciary

This article discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary. The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability. The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other …

Captured Legislatures And Public-Interested Courts, Patrick Luff

Patrick A. Luff

According to public choice, the predominant paradigm of modern regulatory theory, legislative activity provides benefits to small, organized interests at the expense of larger groups. In practice, this means that interest groups are often able to benefit themselves at the expense of the public good. This model has been extended to the courts, which are described as implicit or explicit actors in the wealth-transfer process. Applying public-choice theory to the courts, however, overlooks the structural differences between the federal judiciary and Congress, as well as the insights of judicial decisionmaking theory. Not only do judges receive better and more complete …

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

From the moment the U.S. Supreme Court first confronted the difficult constitutional questions at the heart of the Voting Rights Act, its posture has been one of deference. This posture has continued to this day. In contrast, the Court has interpreted the language of the Act dynamically, often in total disregard to the text of the law or the intent of Congress. But as this Article explains, the Roberts Court appears poised to unsettle this longstanding narrative. The Act is in serious constitutional danger. One way to explain this move on the part of the Court is by invoking the …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater

The Journal of Appellate Practice and Process

No abstract provided.

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

Articles

No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …

Judicial Review Of Initiatives And Referendums In Which Majorities Vote On Minorities’ Citizenship, Sylvia R. Lazos

Scholarly Works

In this Article, Professor Lazos examines initiatives and referendums in which a majority is in a position to vote on the content of a minority's democratic civic standing. Case law fails to set forth a single test for judicial review; consequently, doctrinal and theoretical coherence in this area is nonexistent. Professor Lazos proposes a test that takes into account social dynamics and focuses on the impact of these measures. First, she examines outcomes over the last three decades of approximately eighty such initiatives and referendums, from the anti-integration movement of the sixties to today's ideological and cultural versions, such as …

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

Terminator 2, Robert F. Nagel

Publications

No abstract provided.

Disagreement And Interpretation, Robert F. Nagel

Publications

No abstract provided.

Name-Calling And The Clear Error Rule, Robert F. Nagel

Publications

No abstract provided.

Political Pressure And Judging In Constitutional Cases, Robert F. Nagel

Publications

No abstract provided.

Standards For Judicial Review Of Forest Plans: Will The Courts Not See The Forest For The Trees, Wells D. Burgess

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

50 pages.

Contains 2 attachments.

On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff

Publications

No abstract provided.

Log-Rolling And Judicial Review, Michael J. Waggoner

Publications

No abstract provided.

American Liberals And Judicial Activism: Alexander Bickel's Appeal From The New To The Old, Maurice J. Holland

Indiana Law Journal

No abstract provided.