Law Commons^™

Judicial Review And Non-Enforcement At The Founding, Matthew Steilen

Matthew Steilen

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …

Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey (Book Review), Makau Mutua

Makau Mutua

This review of Mary Dudziak’s hugely important book contends that the author conflates the struggle for civil rights in the United States with the struggle for black majority rule in Kenya. While the two struggles are linked by white domination and the quest for blacks to free themselves from that domination, the book fails to interrogate and contextualize the limitations of equal protection norms for minorities in two vastly different political milieus. Dudziak does not problematize Thurgood Marshall’s blind insistence that the independence Kenyan constitution accord the economically dominant and oppressive white minority in colonial Kenya the same equal protections …

Survey Says: Army Corps No Scalian Despot, Kim Diana Connolly

Kim Diana Connolly

Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers ('the Corps') administration of the permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public's negative perception of the permitting process. She begins the Article with an overview of the Corps' regulatory permitting process, then lays out the history of and context for the Corps' Customer Service Surveys. Next, she summarizes available …

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

Supreme Court Doctrine In The Trenches: The Case Of Collateral Estoppel, John Bernard Corr

John (Bernie) Corr

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

Erwin Chemerinsky

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Lift The Blackout, Erwin Chemerinsky, Eric J. Segall

Erwin Chemerinsky

No abstract provided.

Washington V. Glucksberg Was Tragically Wrong, Erwin Chemerinsky

Erwin Chemerinsky

Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v. Glucksberg. The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects of autonomy …

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Supreme Conundrum: A Look Into Neil Gorsuch, And Why This Particular Supreme Court Confirmation Is So Important To The Current Split Between Liberal And Conservative Justices, Alan E. Garfield

Alan E Garfield

No abstract provided.

Even More Honest Than Ever Before: Abandoning Pretense And Recreating Legitimacy In Constitutional Interpretation, Leslie Gielow Jacobs

Leslie Gielow Jacobs

In this article, Professor Leslie Gielow Jacobs asserts that the Supreme Court, by becoming mired in a formalistic mode of reporting decisions, has sacrificed the legitimacy of its interpretive process. She argues that this sacrifice stems from contemporary Supreme Court opinions' failure to acknowledge alternatives and value judgments that inevitably are a part of decision making. She explores several recent decisions by the Court, noting the detrimental impact of formalism in each. Professor Jacobs then suggests a new method of reporting, defining, and structuring its components into a method which can recreate legitimacy in the interpretive process.

Religious Freedom In The United States: ‘When You Come To A Fork In The Road, Take It', Charles J. Russo

Charles J. Russo

As expansive as the Supreme Court’s view of the First Amendment religion clauses has been, its jurisprudence has demonstrated that its rulings do not always achieve the outcomes desired by proponents of religious freedom.3 From the perspective of supporters of religious freedom, this realization lends credence to the preceding wry comment by Justice Scalia. This article details the Court’s inconsistent treatment of Christianity, and people of faith broadly, especially in educational settings. These inconsistent judicial outcomes run the risk of increasingly marginalizing matters of faith and conscience in the public square.4 As discussed in this article, disputes over the status …

Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, Charles J. Russo

Charles J. Russo

A confluence of litigation at the Supreme Court raises important, yet potentially conflicting, questions about the freedom of employers in religious schools1 to hire teachers and staff members. On the one hand, in Hosanna-Tabor v. Equal Employment Opportunities Commission,2 a unanimous Court reasoned that the ministerial exception granted religious leaders alone the authority to choose who is qualified to teach in their schools. On the other hand, the Court’s rulings on same sex-unions seem to be ushering in a brave new world. For example, in United States v. Windsor,3 the Court struck down the Defense of Marriage Act thereby requiring …

Making Room At The Inn: Implications Of 'Christian Legal Society V. Martinez' For Public University Housing Professionals, Michael D. Waggoner, Charles J. Russo

Charles J. Russo

The Supreme Court ruling in Christian Legal Society v. Martinez, its most important case to date on student associational activities, upheld a policy at a public law school in California that required recognized student organizations (or clubs) to admit "all-comers" even if they disagreed with organizational goals and values, rather than retracing the work of Moran and her colleagues, who examined related issues such as religious expression in public areas of residence halls, this article analyzes the potential impact of CLS, since membership in campus organizations clearly overlaps with the kinds of issues that students and housing professionals deal …

Precedent And Speech, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

Has Nihilism Politicized The Supreme Court Nomination Process?, Bruce Ledewitz

Bruce Ledewitz