Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Constitutional law (31)
- Federalism (13)
- Originalism (6)
- Separation of powers (6)
- Administrative law (5)
-
- Constitutional interpretation (5)
- Fourth Amendment (5)
- Supreme Court (5)
- Judicial review (4)
- Administrative Law (3)
- Agency (3)
- Constitution (3)
- Constitutional theory (3)
- Jurisdiction (3)
- Privacy (3)
- State constitutions (3)
- Statutory interpretation (3)
- Appellate procedure (2)
- Apportionment (2)
- Constitutional Law (2)
- Due process (2)
- Economic inequality (2)
- Enforcement (2)
- Executive power (2)
- Federal Courts (2)
- Japan (2)
- Judges-selection and appointment (2)
- Judicial Review (2)
- Judicial power (2)
- Jurisprudence (2)
Articles 61 - 79 of 79
Full-Text Articles in Law
The Dimension Of The Supreme Court, Paul H. Edelman
The Dimension Of The Supreme Court, Paul H. Edelman
Vanderbilt Law School Faculty Publications
In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.
In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is …
The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon
The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon
Vanderbilt Law School Faculty Publications
Professor Merrill ably demonstrates that Supreme Court decisions should be examined as the product of an inherently political institution. Observers who assert that Justices are best understood as prophets of the law are practicing an intellectual sleight of hand that allows them to ignore the non doctrinal factors that affect judicial behavior. Such an effort is understandable. The Court is a much more complicated subject if its rulings reflect nonlegal factors as well as legal ones. The desire, however, to ignore the true character of the Court produces accounts of its behavior that are inadequate, incorrect, or wholly without content. …
Beyond Accountability, Lisa Schultz Bressman
Beyond Accountability, Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the …
Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman
Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Suzanna Sherry, Paul H. Edelman
Vanderbilt Law School Faculty Publications
In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.
The Law And Large Numbers, Paul H. Edelman
The Law And Large Numbers, Paul H. Edelman
Vanderbilt Law School Faculty Publications
Can mathematics be used to inform legal analysis? This is not a ridiculous question. Law has certain superficial resemblances to mathematics. One might view the Constitution and various statutes as providing "axioms" for a deductive legal system. From these axioms judges deduce "theorems" consisting of interpretation of these axioms in certain situations. Often these theorems are built on previously "proven" theorems, i.e. earlier decisions of the court. Of course some of the axioms might change, and occasionally a theorem that was once true becomes false; the former is a common feature of mathematics, the latter, though theoretically not possible in …
How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.
How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.
Vanderbilt Law School Faculty Publications
Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decision-making.” In his book, Stearns demonstrates that the U.S. Supreme Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing “social choice” economic theory, Professor Stearns argues that the Court strives to formulate rules that promote rationality and fairness. Perhaps the greatest strength of Stearns’ book is that he presents a grand unified theory of the Court’s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, …
Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman
Disciplining Delegation After "Whitman V. American Trucking Ass'ns", Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional …
Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry
Pick A Number, Any Number: State Representation In Congress After The 2000 Census, Paul H. Edelman, Suzanna Sherry
Vanderbilt Law School Faculty Publications
In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using 2000 census figures, they calculate each state's allocation under five different methods, and discuss the advantages and disadvantages of the various methods.
Accommodation And Equal Liberty, Lisa Schultz Bressman
Accommodation And Equal Liberty, Lisa Schultz Bressman
Vanderbilt Law School Faculty Publications
How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …
Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng
Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng
Vanderbilt Law School Faculty Publications
This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …
The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen
The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen
Vanderbilt Law School Faculty Publications
Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our …
Disentangling Deregulatory Takings, Jim Rossi, Susan Ackerman-Rose
Disentangling Deregulatory Takings, Jim Rossi, Susan Ackerman-Rose
Vanderbilt Law School Faculty Publications
Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them …
Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi
Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi
Vanderbilt Law School Faculty Publications
Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …
The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George
The Dynamics And Determinants Of The Decision To Grant En Banc Review, Tracey E. George
Vanderbilt Law School Faculty Publications
The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article …
Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier
Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier
Vanderbilt Law School Faculty Publications
It is a long-established principle that presidential impeachment is an appropriate remedy only for "high Crimes and Misdemeanors" of a public nature (with the possible exception of private crimes so heinous that the President "cannot be permitted to remain at large"). The crux of this Essay's argument is that the President's affair with Monica Lewinsky was a private matter that was not rendered "public" simply because Mr. Clinton lied about it. With its vote against removing the President, the Senate seemed to agree.
Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …
Textualism And Judgment, Suzanna Sherry
Textualism And Judgment, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …
Reasonable Expectations Of Privacy And Autonomy In Fourth Amendment Cases: An Empirical Look At "Understandings Recognized And Permitted By Society", Christopher Slobogin, Joseph E. Schumacher
Reasonable Expectations Of Privacy And Autonomy In Fourth Amendment Cases: An Empirical Look At "Understandings Recognized And Permitted By Society", Christopher Slobogin, Joseph E. Schumacher
Vanderbilt Law School Faculty Publications
This Article reports an attempt to investigate empirically important aspects of the Fourth Amendment to the United States Constitution, as construed by the United States Supreme Court. In the course of doing so, it touches upon two other topics. Most directly, it addresses the appropriate scope of the Fourth Amendment. Less directly, it raises questions about the role that empirical research should play in fashioning constitutional rules.
State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin
State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article examines the "forced linkage" between state and federal provisions that the 1983 amendment establishes in Florida. It concludes that forced linkage is ill-conceived, because it is inimical to state court independence. Accordingly, this article argues, the 1983 amendment to article I, section 12 of the Florida Constitution should be repealed. If not repealed, it should be interpreted to permit Florida courts broad discretion in developing their own stance on search and seizure law. So construed, the amendment would only require Florida courts to abide by those United States Supreme Court opinions that provide (1) an authoritative holding that …