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Full-Text Articles in Law

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau Jan 2009

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …


Standing For The Public: A Lost History, Elizabeth Magill Jan 2009

Standing For The Public: A Lost History, Elizabeth Magill

All Faculty Scholarship

This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal …