Law Commons^™

The Court And The Private Plaintiff, Elizabeth Beske

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Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle

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This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …

Foreword, Stephen Wermiel

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It is an honor and a pleasure to help the American UniversityLegislationandPolicy Brief carry on its fine tradition of scholarly inquiry into important issues facing the nation, the legislatures and the public policy arena. AULPB is an important forum within WCL for student authors to examine cutting edge, timely issues. It is also a focal point, beyond the bounds of the WCL campus, for authors to consider a broad range of pressing issues that combine law and policy questions.

Take Inventory Each Year, David Spratt

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No abstract provided.

A Tribute To Judge Patricia Wald, Jeffrey Lubbers

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No abstract provided.

What Would Justice Brennan Say To Justice Thomas, Stephen Wermiel

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No abstract provided.

Sg's Brief In Lucia Could Portend The End Of The Alj Program As We Have Known It, Jeffrey Lubbers

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No abstract provided.

Think Of An Elephant? Tweeting As "Framing" Executive Power, Fernando R. Laguarda

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No abstract provided.

Adrenaline Of Excellence: The Career Of Judge Gerald Bruce Lee, Claudio Grossman, Andrew Popper

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No abstract provided.

Political Question Disconnects, Elizabeth Earle Beske

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No abstract provided.

Court Capture, Jonas Anderson

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Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.

This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers

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The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the …

In Search Of The Real Roberts Court, Stephen Wermiel

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No abstract provided.

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

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The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel

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The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda …

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

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Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

Justice Brennan And His Law Clerks, Stephen Wermiel

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No abstract provided.

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

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In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira Robbins

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Per curiam--literally translated from Latin to "by the court"-is defined by Black's Law Dictionary as "[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion." Accordingly the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’ tenure, almost nine percent of the Court full opinions were per curiams. The prevalence …

Judicial Retirement And Return To Practice, Mary Clark

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This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

Acus 2.0 And Its Historical Antecedents, Jeffrey Lubbers

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No abstract provided.

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

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The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Paul Verkuil's Projects For The Administrative Conference Of The U.S. 1974-1992, Jeffrey Lubbers

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I am really happy to be part of this tribute to Paul Verkuil. It may surprise those in the audience to learn that I am bringing some needed diversity to today's proceedings - I am the only other Dutch American on the program! But perhaps my twenty years at the "Administrative Conference" also qualifies me to say a few words about how thrilled I am that we have it back - "ACUS 2.0" we can call it, complete with a website this time- and that Paul is at its helm. And I want to thank Paul for bringing me back …

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

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No abstract provided.

Defending The Majoritarian Court, Amanda Frost

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No abstract provided.

Countering The Majoritarian Difficulty, Amanda Frost

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Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are …

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

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This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

Misplaced Modifiers - Say What, David Spratt

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No abstract provided.

Human Rights Hero - Sandra Day O'Connor, Stephen Wermiel, Michael S. Greco

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No abstract provided.

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark

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In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …