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Full-Text Articles in Law
Courts In Federal Countries: Federalists Or Unitarists?, Hannah Steeves
Courts In Federal Countries: Federalists Or Unitarists?, Hannah Steeves
Articles, Book Chapters, & Popular Press
This book is the product of a comparative research project completed by the Forum of Federations and supported by the Government of Quebec. The Forum of Federations has the goal of linking academic research to real world practices and is supported and funded by international partners. Courts in Federal Countries: Federalists or Unitarists? contributes directly to this goal by providing a well-rounded, highly informed, comparative approach to the topic of the structural issues of federalism. This text is the first of a larger, forthcoming, seven volume series on federalism to be developed by the Forum of Federations.
United States V. The William And The Phenomena Of Jury Nullification In Early 19th Century America, Michael G. Lederman
United States V. The William And The Phenomena Of Jury Nullification In Early 19th Century America, Michael G. Lederman
Legal History Publications
In September 1808, Judge John Davis upheld the constitutionality of the Embargo Act of 1807 under the Constitution’s Article I, Section 8, Clause 3 Interstate Commerce power. Judge Davis’s original opinion curiously lacks any reference to Marbury v. Madison. Judge Davis defends judicial review and rejects the notion of jury nullification. While Judge Davis upheld the embargo’s constitutionality, a subsequent jury trial on the facts resulted in the return of The William to its rightful owners. This case reflects the attempts by early American judges to carve out the power of judicial review and maintain the appearance of an …
Stewart V. Mcintosh, 4 H. & J. 233 (1816), Rhett Donnelly
Stewart V. Mcintosh, 4 H. & J. 233 (1816), Rhett Donnelly
Student Articles and Papers
Stewart v. M’Intosh was argued during the time period of the Jay Treaty, the Quasi-War, the Haitian Revolution, and the War of 1812. The facts begin at the end of the 18th century and extend into the early 19th century. The arguments and ruling were based on trade restrictions between United States citizens and territories under French control. The plaintiffs focused their arguments on the specific language of the Congressional acts, which outlawed trade with French territories but did not directly mention the regions at issue, while the defendants looked at the implications of the acts and the …
Book Review: The Free Press Crisis Of 1800: Thomas Cooper's Trial For Seditious Libel, Eric Easton
Book Review: The Free Press Crisis Of 1800: Thomas Cooper's Trial For Seditious Libel, Eric Easton
All Faculty Scholarship
This article was an invited book review of a book of the same title by Peter Charles Hoffer. Hoffer, Distinguished Research Professor of History at the University of Georgia, has published this accessible case history as part of the University Press of Kansas’s Landmark Law Cases & American Society series, which he co-edits.
The book discusses one of the cases arising as a result of the Alien & Sedition Act under the presidency of John Adams, mostly targeting Republicans who editorialized against the Adams administration.
Who Was William Marbury?, David F. Forte
Who Was William Marbury?, David F. Forte
Law Faculty Articles and Essays
Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.
Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman
Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman
Faculty Scholarship
On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.5 When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …
Necessary And Proper, Randy E. Barnett
Necessary And Proper, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national …
Marbury's Travail: Federalist Politics And William Marbury's Appointment As Justice Of The Peace, David F. Forte
Marbury's Travail: Federalist Politics And William Marbury's Appointment As Justice Of The Peace, David F. Forte
Law Faculty Articles and Essays
This Article describes how Marbury, the youngest son of an impoverished remnant of a well-known family, elbowed his way to wealth and influence among the Maryland gentry. Further, this Article illuminates Marbury's choice between the two wings of the Federalist party in Maryland - the Hamiltonian elite and the Adams' loyalists - and how Marbury's partisan service brought him to a position earning Thomas Jefferson's disdain and rebuff. In the end, Marbury's appointment and rejection derived from the very different characters of John Adams and Thomas Jefferson.
Rejecting Conventional Wisdom: Federalist Ambivalence In The Framing And Implementation Of Article V, Kurt T. Lash
Rejecting Conventional Wisdom: Federalist Ambivalence In The Framing And Implementation Of Article V, Kurt T. Lash
Law Faculty Publications
In 1787, the idea of placing an amending provision in a constitution was uncontroversial. Popular sovereignty was an assumed doctrine in the colonies; the people retained the unalienable right "to alter or abolish" their system of government whenever they so pleased. How this unquestionable right was to be incorporated into the new federal Constitution, however, was another matter. The delegates who faced each other at Philadelphia had very different views about which body should be entrusted with the power to propose amendments, when that power should be used, and how that power should be defined.
Article V, like the rest …
Book Review. The Foundations Of American Citizenship: Liberalism, The Constitution, And Civic Virtue, David C. Williams
Book Review. The Foundations Of American Citizenship: Liberalism, The Constitution, And Civic Virtue, David C. Williams
Articles by Maurer Faculty
No abstract provided.