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Articles 31 - 60 of 167
Full-Text Articles in Law
Inferiorizing Judicial Review: Popular Constitutionalism In Trial Courts, Ori Aronson
Inferiorizing Judicial Review: Popular Constitutionalism In Trial Courts, Ori Aronson
University of Michigan Journal of Law Reform
The ongoing debates over the legitimacy of judicial review-the power of courts to strike down unconstitutional statutes-as well as the evolving school of thought called "popular constitutionalism, " are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power This is a striking shortcoming in prevailing constitutional theory, given the fact that in the United States, inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The Article breaks down this monolithic concept of "the courts" …
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
Osgoode Hall Law Journal
For those concerned about the democratic legitimacy of Charter review by Canadian courts, the idea of dialogue offers a promising middle path between the extremes of judicial and legislative supremacy. Current dialogue theory, however, largely fails to live up to this promise of compromise. Instead of distinguishing democratic worries associated with US style, strong-form judicial review, it largely endorses the legitimacy of such review. For dialogue to live up to its original promise, a new theory that more clearly distinguishes Canada from the United States is required. This article offers a new theory of dialogue in which the willingness of …
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
Michigan Law Review
This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …
Judicial Review And American Constitutional Exceptionalism, Miguel Schor
Judicial Review And American Constitutional Exceptionalism, Miguel Schor
Osgoode Hall Law Journal
This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it …
The Court, The Constitution, And The History Of Ideas, Scott D. Gerber
The Court, The Constitution, And The History Of Ideas, Scott D. Gerber
Vanderbilt Law Review
Several of the nation's most influential constitutional law scholars have been arguing for the better part of a decade that judicial review should be sharply limited, or eliminated altogether. The list includes such prominent thinkers as Professor Mark V. Tushnet of Harvard Law School, Professor Cass R. Sunstein of the University of Chicago Law School, and Dean Larry D. Kramer of Stanford Law School. In place of the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison, these leading voices of the legal academy call for "popular constitutionalism": a constitutional law that is defined outside of the …
Mccain’S Citizenship And Constitutional Method, Peter J. Spiro
Mccain’S Citizenship And Constitutional Method, Peter J. Spiro
Michigan Law Review First Impressions
Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.
Originalism And The Natural Born Citizen Clause, Lawrence B. Solum
Originalism And The Natural Born Citizen Clause, Lawrence B. Solum
Michigan Law Review First Impressions
The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin
Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin
Michigan Law Review First Impressions
Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.
Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn't Such A Good Thing After All), Andrew Petter
Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn't Such A Good Thing After All), Andrew Petter
Osgoode Hall Law Journal
This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wright (put forth earlier in this issue) that the frequency of legislative responses to Charter decisions striking down laws, which they refer to as "Charter dialogue," provides evidence that Canada has a weaker form of. judicial review than is thought to exist in the United States. This article also critiques their claim that judicial review is justified by the idea that individuals have rights that cannot be taken away by an appeal to the general welfare'. The author maintains that this claim not only …
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Osgoode Hall Law Journal
In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …
Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel
Militating Democracy: Comparative Constitutional Perspectives, Ruti Teitel
Michigan Journal of International Law
Can constitutional review by judges save democracy? This Article identifies and discusses the rise of "militant constitutional democracy" by exploring diverse approaches to the role of constitutional and transnational judicial review in rights protection and the challenges that these approaches present to the workings of democracy, the possibilities of compromise, consensus, and conciliation in political life, and the challenge to other constitutional values as well. "Militant constitutional democracy" ought to be understood as belonging to transitional constitutionalism, associated with periods of political transformation that often demand closer judicial vigilance in the presence of fledgling and often fragile democratic institutions; it …
Charter Dialogue Revisited: Or "Much Ado About Metaphors", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright
Charter Dialogue Revisited: Or "Much Ado About Metaphors", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright
Osgoode Hall Law Journal
This article is a sequel to the 1997 article "The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All)." In the present article, the authors review various academic critiques of their "dialogue" theory, which postulates that Charter decisions striking down laws are not the last word, but rather the beginning of a "dialogue," because legislative bodies are generally able to (and generally do) enact sequel legislation that accomplishes the main objective of the unconstitutional law. The authors also examine the Supreme Court of Canada's dicta on the "dialogue" phenomenon, and …
Constitutionalism From The Top Down, Grant Huscroft
Constitutionalism From The Top Down, Grant Huscroft
Osgoode Hall Law Journal
Dialogue theory regards judicial interpretation of the Charter as authoritative, and, as a result, denies that continuing disagreement with the courts is legitimate. There is little scope, in other words, for dialogue with the courts in any meaningful sense. The Charter is best understood as establishing strong-form judicial review rather than weak, and legislatures have only as much room to respond to judicial decisions as the courts are prepared to allow.
The Day The Dialogue Died: A Comment On Sauve V. Canada, Christopher P. Manfredi
The Day The Dialogue Died: A Comment On Sauve V. Canada, Christopher P. Manfredi
Osgoode Hall Law Journal
In Sauvé v. Canada (2002) a sharply divided Supreme Court of Canada nullified the inmate disenfranchisement provision of the Canada Elections Act. One of the more important aspects of the majority decision by Chief Justice McLachlin is her refusal to let the concept of dialogue take her down the path of judicial deference. This commentary examines the chief justice's reasons for not taking this path and explores how these reasons reveal the limitations of the dialogue metaphor as originally articulated by Peter Hogg and Allison Bushell. The commentary concludes that any meaningful concept of legislative-judicial dialogue must recognize a coordinate …
Dialogue Theory, Judicial Review, And Judicial Supremacy: A Comment On "Charter Dialogue Revisted", Carissima Mathen
Dialogue Theory, Judicial Review, And Judicial Supremacy: A Comment On "Charter Dialogue Revisted", Carissima Mathen
Osgoode Hall Law Journal
By suggesting that we view the judicial-legislative relationship as a dialogue, the authors of "Charter Dialogue" have greatly influenced constitutional debate in Canada. This commentary offers three observations about the authors' latest contribution. First, it queries the continued usefulness of the term "dialogue." Second, it raises concerns with the idea that section 1 of the Charter promotes dialogue, as the term is now explained by the authors. Finally, it queries the authors' perspective on judicial review and their accompanying terminology.
Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach
Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach
Osgoode Hall Law Journal
The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three …
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Indiana Law Journal
Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
Michigan Journal of Race and Law
This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …
Section 1983 Cases In The October 2004 Term, Martin A. Schwartz
Section 1983 Cases In The October 2004 Term, Martin A. Schwartz
Touro Law Review
No abstract provided.
The Maryland/Georgetown Constitutional Law Schmooze - Foreword: From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber
Maryland Law Review
No abstract provided.
Sequencing The Dna Of Comparative Constitutionalism: A Thought Experiment, Gordon Silverstein
Sequencing The Dna Of Comparative Constitutionalism: A Thought Experiment, Gordon Silverstein
Maryland Law Review
No abstract provided.
Delegation To Courts And Legitimacy, Karol Soltan
Delegation To Courts And Legitimacy, Karol Soltan
Maryland Law Review
No abstract provided.
Distinguishing Formal From Institutional Democracy, Paul Frymer
Distinguishing Formal From Institutional Democracy, Paul Frymer
Maryland Law Review
No abstract provided.
"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? Judicial Review In The United States And Germany, Peter E. Quint
"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? Judicial Review In The United States And Germany, Peter E. Quint
Maryland Law Review
No abstract provided.
Smoke, Not Fire, Neal Devins
Beyond Manicheanism: Assessing The New Constitutionalism, Lisa Hilbink
Beyond Manicheanism: Assessing The New Constitutionalism, Lisa Hilbink
Maryland Law Review
No abstract provided.
Judges, Legislators, And Europe's Law: Common-Law Constitutionalism And Foreign Precedents, Noga Morag-Levine
Judges, Legislators, And Europe's Law: Common-Law Constitutionalism And Foreign Precedents, Noga Morag-Levine
Maryland Law Review
No abstract provided.
Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer
Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer
Maryland Law Review
No abstract provided.
Assessing Juristocracy: Are Judges Rulers Or Agents?, George I. Lovell, Scott E. Lemieux
Assessing Juristocracy: Are Judges Rulers Or Agents?, George I. Lovell, Scott E. Lemieux
Maryland Law Review
No abstract provided.
Is There A Political Tilt To "Juristocracy"?, Carol Nackenoff
Is There A Political Tilt To "Juristocracy"?, Carol Nackenoff
Maryland Law Review
No abstract provided.