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Full-Text Articles in Law
Constitutional Forbearance, A. Christopher Bryant
Constitutional Forbearance, A. Christopher Bryant
Faculty Articles and Other Publications
This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases …
Remanding To Congress: The Supreme Court's New ʺOn The Recordʺ Constitutional Review Of Federal Statutes, A. Christopher Bryant, Timothy J. Simeone
Remanding To Congress: The Supreme Court's New ʺOn The Recordʺ Constitutional Review Of Federal Statutes, A. Christopher Bryant, Timothy J. Simeone
Faculty Articles and Other Publications
In recent years, the fate of federal statutes has increasingly turned on the contents of their formal legislative records. The Supreme Court has shown a new willingness to find statutes unconstitutional because their legislative records do not support the factual judgments that justify congressional action. In this Article, Professors Bryant and Simeone trace the development of the trend toward increased judicial scrutiny of legislative records in recent Supreme Court rulings on the constitutionality of federal statutes. They then critique the Court's new approach, arguing that it is not only inconsistent with precedent, but also fundamentally ill advised, most importantly because …