Law Commons^™

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle

Faculty Publications

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.

The normative foundations of fiduciary loyalty come into sharper focus when viewed …

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.

Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner

Faculty Publications

No abstract provided.

Protest, Policing, And The Petition Clause: A Review Of Ronald Krotoszynski's Reclaiming The Petition Clause, Christina E. Wells

Faculty Publications

This essay, a short book review of Ronald Krotoszynski Jr.'s book, Reclaiming the Petition Clause Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for Redress of Grievances, examines the variety of restrictions that actually affect protestors in the modern landscape. Professor Krotoszynski effectively argues that the Supreme Court's current use of content neutral time place and manner restrictions allows government officials to engage in surreptitious content censorship and also revives the defunct crime of seditious libel. His proposal to locate protestors' rights in the petition clause of the First Amendment is both historically grounded and attempts to …

When Is Finality . . . Final? Rehearing And Resurrection In The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Alternative Methods Of Appellate Review In Trade Remedy Cases: Examining Results Of U.S. Judicial And Nafta Binational Review Of U.S. Agency Decisions From 1989 To 2005, Juscelino F. Colares

Faculty Publications

When the United States and Canada agreed to replace U.S. judicial review of trade-remedy cases with a new dispute mechanism under Chapter 19 of the Canada-United States Free Trade Agreement (now the North American Free Trade Agreement), the U.S. Congress and trade negotiators expected that the new dispute settlement panels would apply U.S. law and the standard of review in the same manner as U.S. courts. This requirement was embodied in the text of the agreement and has at least nominally been applied by Chapter 19 panels ever since. Empirical analysis of seventeen years of decisions now allows a conclusion …

Tom Delay: Popular Constitutionalist?, Neal Devins

Faculty Publications

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Chevron Deference And Treaty Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

The Constitution Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Judicial Review And Global Federalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins

Faculty Publications

No abstract provided.

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Faculty Publications

No abstract provided.

Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein

Faculty Publications

No abstract provided.

Closing The Circle Of Constitutional Review From Griswold V. Connecticut To Roe V. Wade: An Outline Of A Decision Merely Overruling Roe, William W. Van Alstyne

Faculty Publications

No abstract provided.

Scholarly Reflections On The Court And The Constitution, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Idea Of The Constitution As Hard Law, William W. Van Alstyne

Faculty Publications

No abstract provided.

A Reply To Gonzalez, Interpreting This Constitution: Another Response To Professor Van Alstyne, William W. Van Alstyne

Faculty Publications

No abstract provided.

Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins

Faculty Publications

No abstract provided.

Book Review Of The Second American Revolution, Neal Devins

Faculty Publications

No abstract provided.

Notes On A Bicentennial Constitution, Part I: Processes Of Change, William W. Van Alstyne

Faculty Publications

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

The Fate Of Constitutional Ipse Dixits, William W. Van Alstyne

Faculty Publications

No abstract provided.

Interpreting This Constitution: The Unhelpful Contributions Of Special Theories Of Judicial Review, William W. Van Alstyne

Faculty Publications

This paper examines several different theories surrounding judicial review and finds many of these theories lacking. Modern trends of literal interpretations and precise language have removed the optimistic nature of Constitutional language and is largely responsible for the hesitancy of other nations to adopt a supreme constitution.

Administrative Law: Confining And Controlling Administrative Discretion Within The Seventh Circuit, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

A Critical Guide To Marbury V. Madison, William W. Van Alstyne

Faculty Publications

The concept of judicial review of the constitutionality of state and federal statutes by the Supreme Court is generally rested upon the epic decision in Marbury v. Madison. The controversies which have surrounded the exercise of this power by the Supreme Court require a periodic reexamination of the concept of judicial review at its source, the Marbury opinion. This article proceeds by examining the historical context in which the case arose and analyzes the opinion in terms of various alternative approaches which might have been utilized by Chief Justice Marshall. The specific holding of the case is isolated in contrast …

The Supreme Court On Trial, William W. Van Alstyne

Faculty Publications

This review of The Supreme Court on Trial questions why the work’s tackling the age-old issues of the source of judicial review and its constitutionality is particularly novel or unique from other such examinations. Issue is also taken with Brown v. Boards dominance of such discussion and the book’s poor treatment of the desegregation cases.