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Articles 91 - 96 of 96
Full-Text Articles in Legal History
Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan
Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan
All Faculty Scholarship
This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …
The Confrontation Right, Richard D. Friedman
The Confrontation Right, Richard D. Friedman
Book Chapters
This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh …
Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman
Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”
There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of …
The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett
The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.
New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler
New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler
Faculty Scholarship
By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …
Getting Past The Imperial Presidency, Deborah Pearlstein
Getting Past The Imperial Presidency, Deborah Pearlstein
Articles
In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …