Law Commons^™

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Imagining Gun Control In America: Understanding The Remainder Problem Article And Essay, Nicholas J. Johnson

Faculty Scholarship

Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has …

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …