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Articles 181 - 210 of 42924
Full-Text Articles in Law
Federal Courts Are Becoming Reluctant To Take The Lead In Civil Rights Reform, Neal Devins
Federal Courts Are Becoming Reluctant To Take The Lead In Civil Rights Reform, Neal Devins
Neal E. Devins
No abstract provided.
Fighting For The Fourth "R", Neal Devins
Ideological Imbalance: Why Democrats Usually Pick Moderate-Liberal Justices And Republicans Usually Pick Conservative Ones, Lawrence Baum, Neal Devins
Ideological Imbalance: Why Democrats Usually Pick Moderate-Liberal Justices And Republicans Usually Pick Conservative Ones, Lawrence Baum, Neal Devins
Neal E. Devins
No abstract provided.
Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins
Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins
Neal E. Devins
No abstract provided.
I Love You, Big Brother, Neal Devins
Foreword: Government Lawyering, Neal Devins
Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash
Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash
Neal E. Devins
Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys …
Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins
Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins
Neal E. Devins
No abstract provided.
Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins
Neal E. Devins
This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …
How Successfully Can The States' Item Veto Be Transferred To The President?, Louis Fisher, Neal Devins
How Successfully Can The States' Item Veto Be Transferred To The President?, Louis Fisher, Neal Devins
Neal E. Devins
No abstract provided.
Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins
Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins
Neal E. Devins
No abstract provided.
The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove
The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Tara L. Grove
Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …
Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove
Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
Tara L. Grove
This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …
When Can A State Sue The United States?, Tara Leigh Grove
When Can A State Sue The United States?, Tara Leigh Grove
Tara L. Grove
State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove
The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove
Tara L. Grove
The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …
The International Judicial Dialogue: When Domestic Constitutional Courts Join The Conversation, Tara Leigh Grove
The International Judicial Dialogue: When Domestic Constitutional Courts Join The Conversation, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
Tara L. Grove
Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …
The Structural Case For Vertical Maximalism, Tara Leigh Grove
The Structural Case For Vertical Maximalism, Tara Leigh Grove
Tara L. Grove
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …
The Power Of "So-Called Judges", Tara Leigh Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Tara L. Grove
Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …
Takings Clause, Tara Leigh Grove
Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove
Standing As An Article Ii Nondelegation Doctrine, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Standing Outside Article Iii, Tara Leigh Grove
Standing Outside Article Iii, Tara Leigh Grove
Tara L. Grove
The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Tara L. Grove
No abstract provided.
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
A (Modest) Separation Of Powers Success Story, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Tara L. Grove
No abstract provided.
Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove
Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove
Tara L. Grove
A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This Article …
Article Iii In The Political Branches, Tara Leigh Grove
Article Iii In The Political Branches, Tara Leigh Grove
Tara L. Grove
In many separation of powers debates, scholars excavate the practices and constitutional interpretations of Congress and the executive branch in order to discern the scope of various constitutional provisions. I argue that similar attention to political branch practice is warranted in the Article III context. That is true, in large part because much of the constitutional history of the federal courts has been written not by the federal judiciary, but by the legislative and executive branches. To illustrate this point, this Essay focuses on the Exceptions Clause of Article III. The Supreme Court has said little about the meaning of …