Legal Writing and Research Commons^™

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam

Dickinson Law Review (2017-Present)

President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though …

The Formulaic Constitution, Robert F. Nagel

Michigan Law Review

This essay explores the ways in which the formulaic style is different from other, older forms of constitutional doctrine. It argues that the modern style affects the content that the Court finds in the Constitution and that it illuminates the current interpretive functions of the judiciary. Perhaps most importantly, the formulaic style establishes an identifiable relationship between the Court and the public and thus constrains how the Court's version of the Constitution bears upon the larger political culture.

Schwartz: The Supreme Court: Constitutional Revolution In Retrospect, Paul G. Kauper

Michigan Law Review

A Review of The Supreme Court: Constitutional Revolution in Retrospect. By Bernard Schwartz.

Jackson: The Supreme Court In The American System Of Government, Howard M. Downs S.Ed.

Michigan Law Review

A Review of The Supreme Court in the American System of Government. By Robert H. Jackson