Law Commons^™

Boumediene’S Quiet Theory: Access To Courts And The Separation Of Powers., Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers …

Ecj Review Of Member State Measures For Compliance With Fundamental Rights, John J. Barceló Iii

Cornell Law Faculty Working Papers

This essay explores the avenues through which a European-level system of fundamental rights might be effectively enforced against EU Member State measures. The parallel concept in the U.S. occurred when, starting in 1938, the U.S. Supreme Court began ruling that different distinct guarantees in the Federal Bill of Rights of the U.S. Constitution controlled State government measures. In the EU, the European Court of Justice (ECJ) could conceivably follow a similar line of development within the EU system, or, on the other hand, the European Court for Human Rights (ECtHR) could play that role. This essay explores these options and …

Slides: Rethinking Western Water Law: Restoring The Public Interest In Western Water Law, Mark Squillace

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

20 slides

The Long War, The Federal Courts, And The Necessity / Legality Paradox, Stephen I. Vladeck

Book Reviews

This paper is a solicited review of Ben Wittes's book "Law and the Long War: The Future of Justice in the Age of Terror," which rightly suggests that there would be far less legal uncertainty today vis-a-vis the conduct of the war on terrorism had the Bush Administration sought - and had Congress provided - framework legislation governing issues ranging from the detention of "enemy combatants" to surveillance and even interrogation.

Nevertheless, the review takes issue with Wittes's critique of the role of the courts thus far, especially his contention that the Supreme Court's decisions to date may be seen …

Guantanamo, Boumediene, And Jurisdiction-Stripping: The Imperial President Meets The Imperial Court, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This essay argues that the Supreme Court’s recent decision in Boumediene v. Bush, its latest pronouncement on the detainees in Guantanamo Bay, should be understood as a jurisdiction-stripping case. Most of the commentators to address the case so far have seen it as a case about the war on terror, or about the reach of habeas corpus. I argue that this decision takes significant steps toward resolving a debate that has been raging among the giants of constitutional law for more than 50 years: Can Congress “strip” jurisdiction from the federal courts to prevent them from hearing certain important cases? …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Faculty Scholarship

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark A. Graber

Faculty Scholarship

James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …

Judicial Control Of The National Labor Relations Board's Lawmaking In The Age Of Chevron And Brand X, Michael C. Harper

Faculty Scholarship

This article analyzes and applies to Labor Board decision making the Court’s oft-cited 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. The article argues that judicial review of Board decision making under Chevron, though limited, can still be sufficiently meaningful to control excessive shifts in Board lawmaking criticized by many commentators. The article explains why recent Supreme Court decisions reject any distinction between two theoretically distinct forms of agency discretionary lawmaking – (1) lawmaking through construction of the direct force of an ambiguous statute: and (2) lawmaking through the elaboration of law beyond that which is embodied in …

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …

Policentrism, Political Moblization, And The Promise Of Socioeconomic Rights, Brian E. Ray

Law Faculty Articles and Essays

There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed "positive" character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach …

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson

Articles

In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …

Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz

Articles

Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by …

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

Articles

In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …

Understanding The Paradoxical Case Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. …

Leaving The Thicket At Last?, Luis Fuentes-Rohwer, Laura Jane Durfee

Articles by Maurer Faculty

Across the spectrum of ideas debated within the law of democracy, the view is nearly unanimous that the Justices must lead the way toward a better democracy. And yet, as we argue in this Essay, the Court’s handling of the problems since its initial intervention in Baker v. Carr has been nothing short of a mess. Debates in this area offer modern instances of a Court that cares little about doctrinal consistency and judicial craftsmanship, of Justices that care less about compromise and common ground and more about expressing their deeply held views about politics, democracy, and the law. In …

Protecting Private Property With Constitutional Judicial Review: A Social Welfare Approach, Daniel H. Cole, Peter Z. Grossman

Articles by Maurer Faculty

This article uses a social welfare approach to determine if and when the institution of constitutional judicial review of property regulation and expropriation is efficient. A model is proposed in which property rights protection is a component of social costs. Constitutional judicial review is assumed to either add to or subtract on net from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, that constitutional judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the …

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …

Chevron'S Two Steps, Kenneth A. Bamberger, Peter L. Strauss

Faculty Scholarship

The framework for judicial review of administrative interpretations of regulatory statutes set forth in the landmark Chevron U.S.A. v. Natural Resources Defense Council decision prescribes two analytic inquiries, and for good reason. The familiar two-step analysis is best understood as a framework for allocating interpretive authority in the administrative state; it separates questions of statutory implementation assigned to independent judicial judgment (Step One) from questions regarding which the courts role is limited to oversight of agency decisionmaking (Step Two).

The boundary between a reviewing court's decision and oversight roles rests squarely on the question of statutory ambiguity. For while courts, …

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …