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The Misadventures Of State Postconviction Remedies, Larry Yackle
The Misadventures Of State Postconviction Remedies, Larry Yackle
Faculty Scholarship
In a colloquium concentrating on the lower federal courts' jurisdiction to determine federal claims, it falls to me to treat state court opportunities to adjudicate the same issues in advance of, as an aid to, or in place of federal litigation. To do that, I will have to recount some conventional wisdom regarding the development of federal habeas corpus and state postconviction remedies in tandem during the last half century. In due course, I hope to solicit support for an unconventional conclusion to be drawn from that experience.
In Praise Of Woodenness, Gary S. Lawson
In Praise Of Woodenness, Gary S. Lawson
Faculty Scholarship
Not long ago, I was a stalwart champion of judicial terrorism on behalf of economic liberty. In recent years, however, I have become a meek, mildmannered originalist whose favorite adjective is "wooden."' I still like economic liberty as much as the next person - in fact, more than at least one of the next two persons. Nonetheless, much as I would like to, I cannot agree that the Constitution requires a free market to the extent urged by, among others, Roger Pilon, Bernard Siegan,3 Steven Macedo, 4 Randy Barnett,5 and Richard Epstein.6 My aim here is not to criticize their …
A Preface To Constitutional Theory, David B. Lyons
A Preface To Constitutional Theory, David B. Lyons
Faculty Scholarship
We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.
The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …