Law Commons^™

Marshall V Madison: The Supreme Court And Original Intent, 1803-1835, Gordon Lloyd

School of Public Policy Working Papers

Should the justices of the Supreme Court rely on “original intent” as the foundation for constitutional interpretation? Or should they be free to interpret the Constitution in light of hermeneutical approaches created by current philosophies of law? This essay examines the Marshall Court to determine whether its opinions take their bearings from the American Founding or instead rely on a philosophy of jurisprudence that can be separated from the Founding. The purposes of this essay are fourfold: 1) to provide a comprehensive account of the use of the Framers by the Marshall Court, 2) address the normative question of the …

Judicial Supremacy And Its Discontents, Dale Carpenter

Faculty Journal Articles and Book Chapters

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution …

The Lame Ducks Of Marbury, John C. Nagle

Journal Articles

The election of 1800 was one of the most contested - and important - in American history. After it became clear that neither President John Adams nor a Federalist majority in Congress had been reelected, they acted during the lame-duck period to preserve their influences far into the future. They did so by appointing John Marshall as Chief Justice, ratifying the Treaty with France, creating numerous new federal judicial positions, and filling many of those positions with friends, family, and Federalists (including William Marbury). Not surprisingly, Jefferson and his supporters protested these actions as contrary to the will of the …

The Dimension Of The Supreme Court, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.

In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is …

The Federal Court System: A Principal-Agent Perspective, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Professor Merrill ably demonstrates that Supreme Court decisions should be examined as the product of an inherently political institution. Observers who assert that Justices are best understood as prophets of the law are practicing an intellectual sleight of hand that allows them to ignore the non­ doctrinal factors that affect judicial behavior. Such an effort is understandable. The Court is a much more complicated subject if its rulings reflect nonlegal factors as well as legal ones. The desire, however, to ignore the true character of the Court produces accounts of its behavior that are inadequate, incorrect, or wholly without content. …

The True Story Of Marbury V. Madison, David F. Forte

Law Faculty Articles and Essays

Though normally not friends of original intent or legal tradition, today's judicial "activists" like to trace their lineage back to the (purported) original judicial activist, to the great Chief Justice who was the first to persuade the Supreme Court to strike down a law of Congress.

According to this conceit, which is now the standard interpretation enshrined in countless histories and hornbooks, Marbury v. Madison was the breakthrough that demonstrated how truly powerful the judiciary could be. In this famous case, decided 200 years ago, Marshall supposedly showed that the Constitution is an elastic document or at least could be …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Scholarly Works

No abstract provided.

Are Title Vi's Disparate Impact Regulations Valid?, Bradford Mank

Faculty Articles and Other Publications

This Essay, however, contends that section 602 disparate impact regulations in Tide VI are valid because Congress has implicitly sanctioned their creation, and explicitly approved them in subsequent related statutes.

Part II of this Essay discusses the legislative history of Tide VI, which suggests that Congress intended to give administrative agencies discretion to define "discrimination" in their Tide VI regulations as prohibiting either intentional conduct or actions having disparate impacts against racial minorities as long as the President approved such rules.

Part III illustrates that five different Congresses have enacted four subsequent related statutes that explicitly incorporate Tide VI disparate …

Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Looking Ahead: The Future Of Affirmative Action, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Fifty years after Brown v. Board of Education, race is still a serious issue in this country. Fortunately, we no longer debate whether it is legal for the government to operate segregated schools or to treat blacks as second-class citizens. We finally answered that question correctly—it is unconstitutional for the law to segregate and to treat blacks worse than whites.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke …

The Effect Of The Supreme Court's Eleventh Amendment Jurisprudence On Environmental Citizen Suits: Gotcha!, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court's decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the …

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

Scholarly Works

No abstract provided.