Law Commons^™

Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh

Faculty Scholarship

Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.²² There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.²³ These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and …

Shadow Amendments, William J. Aceves

Faculty Scholarship

The Supreme Court’s jurisprudence surrounding the Alien Tort Statute (“ATS”) reflects the phenomenon of shadow amendments, an inevitable outcome of statutory construction. These judicial interpretations altered the ATS and narrowed its reach. Through repeated shadow amendments, the Court has moved the ATS far beyond its original thirty-three word configuration and understanding. These shadow amendments reflect an aggressive form of statutory construction, an ironic description for a Court that has long championed deference to Congress and fealty to legislative text. This dynamic is evident in Nestlé USA, Inc. v. Doe, the Court’s most recent ATS decision. But shadow amendments are …

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

Submission The Ministry Of Justice On Human Rights Act Reform Consultation — Q16: Should The Proposal For Prospective Quashing Orders Be Extended To Proceedings Under The Proposed Bill Of Rights?, Samuel Beswick

All Faculty Publications

I oppose the proposal in Question 16 of the Human Rights Act Reform Consultation to extend prospective quashing orders to proceedings under human rights law. I express no view here on suspended quashing orders, although I would urge the Government to consider experiences and critiques of this doctrine in comparable common law jurisdictions such as Canada before enacting this novel reform.

I have previously expressed opposition to prospective quashing orders in my submissions to the Judicial Review Reform Consultation and the House of Commons General Committee on the Judicial Review and Courts Bill 152, as well as in a contribution …

Voting Rights Or Voting Entitlements?, James J. Sample

Hofstra Law Faculty Scholarship

It took nearly 100 years after the United States gained its independence for African American men to secure the right to vote, and almost 150 years for African American women. A right perceived—though not de facto honored—as fundamental for all Americans today was fought for in a war less than two centuries ago, costing 620,000 lives. The country quite literally divided over the idea that African Americans should be afforded basic human rights. Today, resistance to the franchise—to what the mythology of America 'stands for'—is not remotely erased, but rather, newly emboldened, even if it masquerades under more obfuscating terminology. …

Submission To House Of Commons General Committee On Judicial Review And Courts Bill 152 2021-22 (Prospective Quashing Orders), Samuel Beswick

All Faculty Publications

I disagree with the proposal in the Judicial Review and Courts Bill, clause 1(1)(29A)(1)(b), to create prospective-only remedies in judicial review, because:

a. Prospective Quashing violates Professor A.V. Dicey’s canonical three meanings of the Rule of Law.

b. The premise of Subsection (1)(b), ‘that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating’ impugned acts, is contradicted by the leading mainstream theories of adjudication in the common law world.

c. Prospective Quashing draws judges into making policy and encourages judicial activism.

d. Prospective Quashing is inconsistent with the English common law judicial method …

Submission To The Ministry Of Justice On Judicial Review: Proposals For Reform – ‘Prospective Invalidation/Overruling’, Samuel Beswick

All Faculty Publications

The Government Response to the Independent Review of Administrative Law proposes to provide judges a discretionary power to grant prospective-only remedies in judicial review proceedings. It further proposes to legislate a presumption or a requirement of prospective-only remedies when statutory instruments are quashed. The Government’s Report relies on arguments made in Sir Stephen Laws QC’s IRAL Submission advocating for prospective-only judicial remedies. My submission responds to the content of both documents.

The Government should abandon its proposal to legislate in favour of Prospective Invalidation in the judicial review context (and in any other context) because:

a. Prospective Invalidation violates the …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

Prospective Overruling Unravelled, Samuel Beswick

All Faculty Publications

Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. It appears unfair and inefficient for novel judicial decisions to apply to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique …

Outlaws, Pirates, Judges: Judicial Activism As An Expression Of Antiauthoritarianism In Anglo-American Culture, Beau Steenken

Law Faculty Scholarly Articles

This article will argue that the rejection of what scholars otherwise

view as controlling legal authority lies at the heart of judicial activism.

Furthermore, it will argue that judicial activism itself channels the

antiauthoritarian current in American culture (and in English culture

predating its importation to America). Part II will examine the extensive

scholarly writings already existing on judicial activism in order to identify

common themes and to explore to what extent scholars have arrived at a

consensus definition of judicial activism. Part III will then show that

judicial activism may better be understood within the context of law as …

Janus's Two Faces, Kate Andrias

Articles

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further attack on labor rights—as …

The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Preferential Judicial Activism, Sudha Setty

Faculty Scholarship

The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the …

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

A Cautionary Tale: Some Insights Regarding Judicial Activism From The National Experience, Maartje De Visser

Research Collection Yong Pung How School Of Law

Courts, whether national or European, are sometimes subject to charges of judicial activism. Adopting a comparative perspective, this contribution charts the ways in which constitutional courts in the Member States have sought to mitigate or pre-empt charges of activism. The primary purpose is to identify attractive solutions or lessons the ECJ may draw from dealing with this perception of judicial activism. It is important at the outset to be clear about what is meant by ‘judicial activism’. Judicial activism is often used as a slogan to communicate dislike or disagreement with a particular judgment or line of case law. While …

A Summary Of Why We Need More Judicial Activism, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err …

Hugo Black’S Wall Of Separation Of Church And State, Garland L. Goff Jr.

Senior Honors Theses

Justice Hugo Black and his 1947 opinion in Everson v. Board of Education. In this opinion, Justice Black quoted Thomas Jefferson’s term “wall of separation” and further added his own opinion that the wall must be high and impregnable. This meant that from that day forward the separation of church and state would be applied to all aspects of government not just the federal level. Several key factors in Justice Black’s background inclined the Justice to rule unfavorably against religion. First, it is a known fact that Justice Black was a member of the KKK, an organization that was known …

Judicial Engagement, Written Constitutions, And The Value Of Preservation: The Case Of Individual Rights, Elizabeth Price Foley

Faculty Publications

When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for …

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia W. Moore

Faculty Articles

The effect of Ashcroft v. Iqbal on pleading standards and behavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data …

The Tao Of Pleading: Do Twombly And Iqbal Matter Empirically, Patricia W. Moore

Faculty Articles

In 2007, the Supreme Court issued its opinion in Bell Atlantic Corp. v. Twombly, sending “shockwaves” through the federal litigation bar. Seemingly without prior warning, the Court abrogated “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”—the standard for deciding 12(b)(6) motions first stated fifty years earlier in Conley v. Gibson. To replace the old rule, the Court announced a new “plausibility” standard: that a complaint …

Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism, Diana Ginn

Articles, Book Chapters, & Popular Press

In Power Without Law, author Alex Cameron strongly criticizes "incautious judicial activism" which allows the law to become "too malleable to personal judicial predilection."' Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1)," in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall …

Competence And Member State Autonomy: Causality, Consequence And Legitimacy, Paul Craig

Articles by Maurer Faculty

The scope of EU competence and the limits on Member State autonomy can validly be analyzed from a variety of perspectives. This chapter considers one such perspective, the prevailing concern about the scope and exercise of EU competence. This concern is often based on the premise that some reified entity called the EU has increasingly arrogated power, with a consequent diminution of national autonomy that the Member States have been unable to resist, and the ECJ is frequently regarded as bearing primary responsibility. it will however be argued in the first half of this chapter that the Community courts were …

Addressing Judicial Activism In The Indian Supreme Court: Towards An Evolved Debate, Madhav Khosla

Faculty Scholarship

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court's functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with …

The Irony Of Judicial Elections, David E. Pozen

Faculty Scholarship

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of …

Battle Of The Branches: The Separation Of Powers Doctrine In State Education Funding Suits, Sarah Seo

Faculty Scholarship

What is the scope of judicial power to enforce positive rights, such as the right to education? This Note analyzes litigation outcomes in state education finance lawsuits to examine how state courts exercise their authority within the limits of the separation of powers doctrine. The Note argues that practical, non-legal factors play an important role in a judge's decision to grant remedies addressing unconstitutional legislative inaction to provide an adequate public education. In conclusion, the Note discusses the efficacy of education litigation in light of the judicial s jurisdictional limits, as well as the realities of state politics.

Regulatory Reform: The New Lochnerism?, David M. Driesen

College of Law - Faculty Scholarship

This article explores the question of whether contemporary regulatory reformers' attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value-neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications for modern regulatory reform.

Judicial Activism And Its Critics, Kermit Roosevelt, Richard W. Garnett

Journal Articles

"Judicial activism," writes Professor Kermit Roosevelt, of Penn, has been employed as an "excessive and unhelpful" charge--one "essentially empty of content." As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with "much, though not all, of" Roosevelt's position. Ultimately, Garnett suggests "that 'judicial activism' might be salvaged, and used as a way of identifying and criticizing decisions...that fail to demonstrate th[e] virtue" of constitutional "humility."