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Full-Text Articles in Supreme Court of the United States
Marshaling Mcculloch, Richard A. Primus
Marshaling Mcculloch, Richard A. Primus
Reviews
David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.
Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson
Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson
Faculty Scholarship
In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of …
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations of …
Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley
Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley
Faculty Publications & Other Works
Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several …
The Failure Of The Criminal Procedure Revolution, William T. Pizzi
The Failure Of The Criminal Procedure Revolution, William T. Pizzi
Publications
No abstract provided.
Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash
Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash
Law Faculty Publications
"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …
Narrowly Tailoring The Covid-19 Response, Craig Konnoth
Narrowly Tailoring The Covid-19 Response, Craig Konnoth
Publications
No abstract provided.
The Roberts Court And Administrative Law, Gillian E. Metzger
The Roberts Court And Administrative Law, Gillian E. Metzger
Faculty Scholarship
Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …