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Articles 1 - 15 of 15
Full-Text Articles in Law
Marshaling Mcculloch, Richard A. Primus
Marshaling Mcculloch, Richard A. Primus
Reviews
David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.
Eighty Years Of Federalism Forbearance: Rationing, Resignation, And The Rule Of Law, Gil Seinfeld
Eighty Years Of Federalism Forbearance: Rationing, Resignation, And The Rule Of Law, Gil Seinfeld
Reviews
Andrew Coan’s book, Rationing the Constitution, offers a novel account of the forces that drive Supreme Court decisions across a wide array of highly controversial, vitally important areas of law. The project is ambitious. It endeavors to improve our understanding of forces that constrain the form and, ultimately, the substance of our constitutional law along each of its major axes: federalism, the separation of powers, and individual rights. I think it succeeds. The book’s central claim—that familiar (but underexplored) institutional constraints and background norms sharply limit the range of choices available to the Court when it is called upon to …
The Elephant Problem, Richard Primus
The Elephant Problem, Richard Primus
Reviews
In their new book, "A Great Power of Attorney": Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central …
The Future Resists Control, Richard A. Primus
The Future Resists Control, Richard A. Primus
Reviews
Bruce Ackerman long ago persuaded me that Article V has not been the only route—or even the normal route—to legitimate constitutional change. Volume 3 admirably adds nuance to Ackerman’s account of what happens instead. But nuance can be a vice of a theory as well as a virtue, depending on whether the goal is to understand a phenomenon in its complexity or to provide an actionable program for the future. We The People aims to do both: it is, after all, a grand project, probably the most important in constitutional thought in the last thirty years. But in spite of …
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Reviews
When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.
Review Of Taming Globalization: International Law, The U.S. Constitution, And The New World Order, Kristina Daugirdas
Review Of Taming Globalization: International Law, The U.S. Constitution, And The New World Order, Kristina Daugirdas
Reviews
According to Julian Ku of Hofstra University School of Law and John Yoo of the University of California, Berkeley, School of Law, globalization poses a significant threat to the U.S. constitutional system of governance. In their recent book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, they seek to reassure readers that this threat can be deflected. If their prescriptions are followed, Ku and Yoo argue, the United States can avoid constitutional problems while continuing to reap the benefits of international cooperation. Ku and Yoo insist that they are neither trying to stop globalization …
A Crisis In Federal Habeas Law, Eve Brensike Primus
A Crisis In Federal Habeas Law, Eve Brensike Primus
Reviews
Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …
The Canon Has A History, Richard A. Primus
The Canon Has A History, Richard A. Primus
Reviews
Legal Canons, edited by J. M. Balkin and Sanford Levinson, is a collection of fourteen essays on subjects related to canonicity in law and legal education. Balkin and Levinson have two principal aims. One is to expand the category of things that can be canonical: not just texts, they say, but also arguments, problems, narrative frameworks, and examples invoked in conversation or teaching. In their view, what makes something canonical is its ability to reproduce itself in the minds of successive generations.' If generation after generation of legal academics argues about the countermajoritarian difficulty, then the countermajoritarian difficulty is a …
...A Rendezvous With Kreplach: Putting The New Deal Court In Context, Richard D. Friedman
...A Rendezvous With Kreplach: Putting The New Deal Court In Context, Richard D. Friedman
Reviews
The Supreme Court of the New Deal era continues to captivate lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes seemed--whatever the reality--to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.
"Externalities And Other Parasites." Review Of The Strategic Constitution, By R. D. Cooter, And Constitutional Democracy, By D. C. Mueller, Donald J. Herzog
"Externalities And Other Parasites." Review Of The Strategic Constitution, By R. D. Cooter, And Constitutional Democracy, By D. C. Mueller, Donald J. Herzog
Reviews
I shall argue that despite the occasional and charmingly belligerent pose struck by some economists of offering a superior alternative to conventional moral and political theory, economics is covertly parasitic on that theory. I begin in Part I by describing some of the core features of economic analysis and by disclosing my own sentiments about that analysis. The description will be terse, the disclosure partial. My aim is to identify, but certainly not pretend to resolve, some thorny methodological issues that surface in these two books. As for the disclosure, well, even if full disclosure were possible, which I doubt, …
Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger
Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger
Reviews
In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. …
Whose Loyalties?, Christina B. Whitman
Whose Loyalties?, Christina B. Whitman
Reviews
It is disconcerting to open a book subtitled An Essay on the Morality of Relationships and find that the two case studies that most interest the author are reciting the Pledge of Allegiance in public schools and the criminalization of flag burning. Although George Fletcher begins to make his case for giving moral priority to loyalties by referring to the impulse to save one's mother from a burning house (p. 12), he is more concerned with the ties that bind individuals to groups than with the ethics of relationships between individuals. The loyalties to which Fletcher would give "moral importance" …
Abstract Democracy: A Review Of Ackerman's We The People, Terrance Sandalow
Abstract Democracy: A Review Of Ackerman's We The People, Terrance Sandalow
Reviews
We the People: Foundations is an ambitious book, the first of three volumes in which Professor Ackerman proposes to recast conventional understanding of and contemporary debate about American constitutional law. Unfortunately, the book's rhetoricinflated, self-important, and self-congratulatory-impedes the effort to come to terms with its argument. How, for example, does one respond to a book that opens by asking whether the reader will have "the strength" to accept its thesis? Or that announces the author's intention of "engaging" two of the most influential works of intellectual history of the past several decades-and then discusses one in two and one-half pages …
Approaching The Constitution, Don Herzog
Approaching The Constitution, Don Herzog
Reviews
These are sumptuously produced, oversized volumes: one pictures them, as I suspect some shrewd accountant at the press did, decorating the shelves of lawyers' offices. Their pages are crammed full of primary texts, two columns on each page, in an alarmingly small but somehow readable typeface. Some texts are bare snippets; others wind on luxuriantly for many pages. The editors have set a cutoff point: no text from after 1835 appears. Like much else about these volumes, that decision reflects a set of theoretical commitments about the Constitution that I want to question. Not that these volumes are explicitly cast …
Review Of The Supreme Court On Trial, By C. S. Hyneman., Jerold H. Israel
Review Of The Supreme Court On Trial, By C. S. Hyneman., Jerold H. Israel
Reviews
Professor Hyneman's book represents still another entry in the current debate over the proper role of judicial review in a democratic society.' Although he approaches this subject via an analysis of several recent attacks upon the United States Supreme Court, Professor Hyneman essentially deals with the same topics-the legitimacy of judicial review, the proper standards applicable to constitutional adjudication, and the alleged departure of the school segregation cases2 from those standards-that have served as the subject of several books and at least a score of articles published within the past five years.3 Indeed the writing in this area has grown …