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Full-Text Articles in Law
Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan
Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan
Faculty Scholarship
Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …
The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss
The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss
Faculty Scholarship
In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of …