Law Commons^™

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Environmental Law And The Supreme Court: Three Years Later, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

In my Garrison Lecture three years ago, I surveyed the environmental law decisions of the Supreme Court between 1970 and 1999. I commented on which Justices had been more or less influential in shaping the Court's decisions and, even more provocatively (if not foolishly), sought to "score" the individual Justices on their responsiveness to environmental protection concerns based on their votes cast in a subset of those cases. The broader thesis of the lecture, however, was that there is something distinctively "environmental" about environmental law and that the Court's increasing inability to appreciate that dimension was leading to more poorly-reasoned …

Are Judges Motivated To Create "Good" Securities Fraud Doctrine?, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

‘How Do Judges Maximize? (The Same Way Everybody Else Does – Boundedly): Rules of Thumb in Securities Fraud Opinions’, by Stephen M. Bainbridge and G. Mitu Gulati, confronts the reader with a theory about judicial behavior in the face of complex, "unexciting" cases such as those involving securities fraud. The story is simple: few judges find any opportunity for personal satisfaction or enhanced reputation here, so they simply try to minimize cognitive effort, off-loading much of the work that has to be done to their clerks. The evidence that Bainbridge and Gulati offer is the creation of some ten or …

The Limits Of Being "Present At The Creation", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Having been invited late to this Symposium and having read fewer than all essays, I offer, (with deep appreciation for the invitation), only mini-comments on three of the many valuable contributions: the essays by Professors Persily, Hasen, and Gerken. But first, at risk of pedantry, may I suggest changing the Symposium's title to something like "Baker and its Progeny .... (or "Baker, doughnuts, and holes"?). Most of the treatment seems to be about the progeny, as surely it should be. While of course everyone knows how far Baker went, what Reynolds did, and what was not done until after Reynolds, …

Law And Prudence In The Law Of Justiciability: The Transformation And Disappearance Of The Political Question Doctrine, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay develops the foregoing argument by examining, in Section I, the transformation of the political question doctrine from Baker v. Carr through Walter Nixon v. United States. Section II charts a similar, perhaps even more dramatic transformation of the law of standing. Section I then examines Bush v. Gore, explaining how older doctrines of standing and political questions might have been thought relevant there. It argues as well that the very fact that those doctrines went unmentioned by the Court shows why we must take a historically grounded view of justiciability doctrines. Section IV sketches the historical settings in …