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Full-Text Articles in Law

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen Mar 2009

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen

Vanderbilt Law Review

This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …


John Mclean: Moderate Abolitionist And Supreme Court Politician, Paul Finkelman Mar 2009

John Mclean: Moderate Abolitionist And Supreme Court Politician, Paul Finkelman

Vanderbilt Law Review

His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions. Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact …


Pierce Butler: A Supreme Technician, David R. Stras Mar 2009

Pierce Butler: A Supreme Technician, David R. Stras

Vanderbilt Law Review

Despite serving for more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the lesser-known Justices in American history. When his name is mentioned by constitutional scholars, it is usually to deride him for being one of the so-called "Four Horsemen of the Apocalypse," a group of Justices that invalidated efforts by politicians, especially President Franklin Delano Roosevelt, to enact New Deal reforms. Scholars have characterized his role in the development of constitutional law as "minimal," and he is the subject of only one full-length book, A …


Justice Sutherland Reconsidered, Samuel R. Olken Mar 2009

Justice Sutherland Reconsidered, Samuel R. Olken

Vanderbilt Law Review

In the annals of Supreme Court history, George Sutherland occupies a curious place. Associate Justice of the U.S. Supreme Court from 1921 to 1938, the Utah native has long been identified as one of the infamous "Four Horsemen," known largely for his role as a judicial conservative instrumental in the Court's invalidation of significant aspects of the New Deal. Yet Sutherland was also the author of several influential opinions involving matters as diverse as civil rights, freedom of expression, and others that recognized the broad authority of the federal government in the realm of foreign and military affairs. A proponent …


Bushrod Washington, Herbert A. Johnson Mar 2009

Bushrod Washington, Herbert A. Johnson

Vanderbilt Law Review

In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the …


The Captures Clause, Ingrid Wuerth Jan 2009

The Captures Clause, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians and others have recently cited the Clause to support conflicting arguments about the scope of Congress’s power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress’s power broadly understand the Captures Clause as giving Congress the power to determine what (or whom) may …


On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos Jan 2009

On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a …


The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman Jan 2009

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …


Rico Overreach: How The Federal Government's Escalating Offensive Against Gangs Has Run Afoul Of The Constitution, Matthew H. Blumenstein Jan 2009

Rico Overreach: How The Federal Government's Escalating Offensive Against Gangs Has Run Afoul Of The Constitution, Matthew H. Blumenstein

Vanderbilt Law Review

The United States has a problem with gangs. According to the Department of Justice, there are more than twenty thousand gangs in the United States today, with over one million members. There are gangs in every state and in the District of Columbia. This is a dire problem in the eyes of federal government officials. According to Attorney General Michael Mukasey, "Gangs threaten our society .... They bring a culture of violence and drugs to our doorsteps, creating an atmosphere of fear, diminishing the quality of life, and endangering the safety, well-being, and future of our children." In response, the …


The Reviewability Of The President's Statutory Powers, Kevin M. Stack Jan 2009

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with …


Emotional Common Sense As Constitutional Law, Terry A. Maroney Jan 2009

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …