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Full-Text Articles in Law
Prosecutors At The Periphery, Peter M. Shane
Prosecutors At The Periphery, Peter M. Shane
Chicago-Kent Law Review
Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed …
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
Chicago-Kent Law Review
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman
Chicago-Kent Law Review
This article explores and examines William E. Nelson’s masterful study of the origins and adoption of the Fourteenth Amendment, The Fourteenth Amendment: From Political Principal to Judicial Doctrine (1988). The article explains that a quarter of a century after he wrote this book, Nelson’s study of the origins and adoption of the Amendment remains the best exploration of these issues. His book illustrates the difficulties of determining the “original intent” of the framers of this complicated and complex Amendment. At the same time, however, Nelson demonstrates that for many issues we can come to a strong understanding of the goals …
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Chicago-Kent Law Review
My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that …