Open Access. Powered by Scholars. Published by Universities.®
- Publication
- Publication Type
Articles 1 - 2 of 2
Full-Text Articles in Law
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Faculty Scholarship
Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …
Facial And As-Applied Challenges Under The Roberts Court, Gillan E. Metzger
Facial And As-Applied Challenges Under The Roberts Court, Gillan E. Metzger
Fordham Urban Law Journal
Resistance to facial challenges is a recurring theme of the Roberts Court’s early years. Yet close analysis of the Court’s decisions suggests that its approach to facial and as-applied challenges is largely consistent with prior practice. Despite occasional description of as-applied challenges in narrow terms, it has expressly preserved the possibility that as-applied challenges could be brought pre-enforcement and allowed an as-applied challenge to be the vehicle for broad relief. It has also followed the Rehnquist Court in asserting wide remedial discretion to sever statutes to fit constitutional requirements, and even its strategic use of the facial/as-applied distinction is not …