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Full-Text Articles in Law
Department Of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Dec. 6, 2001 (Statement Of Neal Kumar Katyal, Prof. Of Law, Geo. U. L. Center), Neal K. Katyal
Testimony Before Congress
No abstract provided.
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet
University of Michigan Journal of Law Reform
Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to …
Publicity And The Judicial Power, Daniel N. Hoffman
Publicity And The Judicial Power, Daniel N. Hoffman
The Journal of Appellate Practice and Process
The judicial branch was created in order to ensure that the rule of law and not the rule of man prevailed. Judges must use reasoning and analysis to fulfill this role. Making decisions based on mere coin tosses or without giving a reason for the decision detracts from the rule of law. Issuing decisions that cannot be published or cited also detracts the judicial role of ensuring that law rules the land.
Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson
Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson
Faculty Scholarship
Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts.' This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order.2 As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants,3 people talk about wholesale jurisdiction-stripping far more than they actually do it.
Dissing Congress , Ruth Colker, James J. Brudney
Dissing Congress , Ruth Colker, James J. Brudney
Faculty Scholarship
This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …
Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser
Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser
Publications
In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, …
Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee
Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee
Scholarly Works
In Printz v. United States (1997), the Court held that certain sections of the Brady Handgun Violence Prevention Act were unconstitutional. Until the Attorney General set up a national system, the Act required the chief local law enforcement official to make certain background checks. The Court held that Congress exceeded its authority by requiring local law enforcement officials to take this action. Writing for the majority, Justice Scalia “conclude[d] categorically . . . ‘The Federal Government may not compel the States to enact or administer a federal regulatory program.” ’ The Court offered two justifications. First, these commands to the …
Foreign Affairs Federalism And The Separation Of Powers, John C. Yoo
Foreign Affairs Federalism And The Separation Of Powers, John C. Yoo
Villanova Law Review
No abstract provided.
"Shut Up He Explained", Mark V. Tushnet
"Shut Up He Explained", Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …
Legislative Constitutional Interpretation, Neal K. Katyal
Legislative Constitutional Interpretation, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and …
Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet
Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. …