Law Commons^™

Tom Delay: Popular Constitutionalist?, Neal Devins

Neal E. Devins

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Neal E. Devins

No abstract provided.

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Neal E. Devins

No abstract provided.

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Alan J. Meese

No abstract provided.

Inconsistent Standards Of Review In Last Term's Establishment Clause Cases, Neal Devins

Neal E. Devins

No abstract provided.

Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins

Neal E. Devins

No abstract provided.

Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins

Neal E. Devins

No abstract provided.

Book Review Of The Second American Revolution, Neal Devins

Neal E. Devins

No abstract provided.

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Davison M. Douglas

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

The Judicial Safeguards Of Federalism, John C. Yoo

John C Yoo

No abstract provided.

Who's Afraid Of The Eleventh Amendment - The Limited Impact Of The Court's Sovereign Immunity Rulings, Jesse H. Choper, John C. Yoo

John C Yoo

No abstract provided.

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

Sharon E. Rush

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Who's Afraid Of The Eleventh Amendment - The Limited Impact Of The Court's Sovereign Immunity Rulings, Jesse H. Choper, John C. Yoo

Jesse H Choper

No abstract provided.

Criminal Wrongs And Constitutional Rights: A View From India, Shubhankar Dam

Shubhankar Dam

This essay offers an overview of how ideas of constitutionalism, rule of law and fundamental rights contributed to the development of criminal law in India. Various courts, and the Supreme Court in particular, have summoned these broad constitutional concepts to understand, interpret and develop criminal law doctrines. But they are also drawing on these concepts to increasingly address “structural” issues of the criminal justice system - the very apparatus responsible for implementing the doctrines.

What Is Intermediate Legislative Power?, Shubhankar Dam

Shubhankar Dam

The President in India’s parliamentary system is authorized to promulgate legislation under Article 123.1 While such legislation, or ‘ordinances’, enjoy the same force and effect as Acts, they are distinct in some ways. First, ordinances lack legislative deliberation: the President promulgates them ‘except when both Houses of Parliament are in session’. Secondly, it depends on the President’s satisfaction that ‘circumstances exist that render it necessary for him to take immediate action’. And they are transient: ordinances cease to operate on the expiry of six weeks from the reassembly of Parliament unless withdrawn earlier or formally enacted into law. Ordinances, then, …

Public Law And Public Resources In India, Shubhankar Dam

Shubhankar Dam

No abstract provided.

The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Justifying Motive Analysis In Judicial Review, Gordon G. Young

Gordon G. Young

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is that the political safeguards that …

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Mark Graber

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …

Gunneflo - Demokrati Och Lagprövning: Om Rättfärdigandet Av En Positiv Respektive Negativ Inställning Till Lagprövning [Democracy And Judicial Review: On The Justicfication Of A Positive And A Negative Attitude To Judicial Review In A Democracy], Markus Gunneflo

Markus Gunneflo

Can A Legislative Assembly Function Without An Executive Government Under The Indian Constitution?, Shubhankar Dam

Shubhankar Dam

Can the Governor dissolve a Legislative Assembly under the Indian Constitution even before convening its first meeting on the ground that no party had adequate mandate to form the government? That was the question posed before the Supreme Court in Rameshwar Prasad. The Court held in the affirmative. For the Court, a Legislative Assembly can be brought into existence only when some members of the Legislature are in a position to form the Executive Government (the Cabinet). This short comment proposes an argument to the contrary. I argue that the Supreme Court's conclusion was made possible by a method of …

Parliamentary Privileges As Façade: Political Reforms And Constitutional Adjudication, Shubhankar Dam

Shubhankar Dam

Does the Indian Parliament have the power to expel its members under the "powers, privileges and immunities" guaranteed by the Constitution? The Indian Supreme Court was confronted with the question in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others. Powers, privileges and immunities of the Indian Parliament are provided under Article 105. Supposedly based on an interpretation on Article 105(3), Sabharwal C.J., writing for the majority (Thakker J. concurring), concluded that Parliament did have the power to expel and that the same was subject to judicial review. Raveendran J. dissented. The particular privilege of the House of Commons, …

Situating The Core And Structure Of Experience In Constitutional Interpretation: Judicial Reasoning Under The Indian Constitution, Shubhankar Dam

Shubhankar Dam

This article is about texts: texts of legal provisions and texts of judgments. How much does the text of a legal provision tell us about its meaning? How much does a judgment tell us about the reasons for any given meaning of the text? Rather than in the abstract, the article unfolds both these questions in the context of the Indian Constitution. More specifically, it unfolds the questions in the context of an issue of great constitutional importance the Indian Supreme Court was confronted with in B. R. Kapur v. State of Tamil Nadu and Another. Can a person convicted …

Unburdening The Constitution: What Has The Indian Constitution Got To Do With Private Universities, Modernity And Nation States?, Shubhankar Dam

Shubhankar Dam

This article critically analyses the decision of the Indian Supreme Court in Yashpal and another v. State of Chhattisgarh and others holding the establishment of private universities as unconstitutional. Swayed by the overwhelmingly irresponsible character of the respondent universities, the Supreme Court innovated constitutional arguments to uphold the claims of the petitioners. While intuitively correct in the context of the immediate facts, the judgment, when analysed in the abstract, reveals the self-inflicted harm it has the potential to cause. The judgment is technologically regressive: it fails to account for the emerging trends in education, especially those related to the use …

Vineet Narain V Union Of India: A Court Of Law And Not Justice: Is The Indian Supreme Court Bound By The Indian Constitution, Shubhankar Dam

Shubhankar Dam

The last twenty five years are an “impressive” chronicle of the Indian Supreme Court in action. Its novel functioning has changed the internal dynamics of Indian polity in a manner unknown to constitutional democracies. From an institution entrusted with the task of adjudicating disputes between parties, the Indian Supreme Court has transformed itself into an institution enjoined to promote the ideals of a socio-economic and political justice. Its prior role as an “adjudicator” has undergone a reappraisal. The judges therein are no more adjudicators but activists, energetically contributing to the accomplishment of India's constitutional vision. In this new creation, they …

Lawmaking Beyond Lawmakers: The Little Right And The Great Wrong, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Is Indian Democracy Dependent On A Statute?, Shubhankar Dam

Shubhankar Dam

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for …

Green Laws For Better Health: The Past That Was And The Future That Maybe - Reflections From The Indian Experience, Shubhankar Dam

Shubhankar Dam

No abstract provided.