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, …

Foreign Affairs: Presidential Initiative And Congressional Control, David P. Currie

Michigan Law Review

Jefferson Powell is one of our foremost scholars of constitutional history. He is particularly adept at bringing extrajudicial sources to bear on constitutional issues. Owing perhaps in part to his extensive service in the Department of Justice, he has a special facility for the use of executive materials; he is surely our leading academic expert on executive interpretation of the Constitution. In his latest book Professor Powell applies his enviable skills to the recurring, fundamental, and controversial question of the division of authority between the President and Congress in the realm of foreign affairs. As is always the case when …

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …

Choosing Justices: A Political Appointments Process And The Wages Of Judicial Supremacy, John C. Yoo

Michigan Law Review

William H. Rehnquist is not going to be Chief Justice forever - much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, …