Law Commons^™

Legislating Chevron, Elizabeth Garrett

Michigan Law Review

One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, lnc., is routinely referred to as the "counter-Marbury." The reference suggests that Chevron's command to courts to defer to certain reasonable agency interpretations of statutes is superficially an uneasy fit with the declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is." According to the consensus view, Chevron deference is consistent with Marbury, as long as Congress has delegated to agencies the power to make policy by interpreting ambiguous statutory language or filling …

Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole

Michigan Law Review

As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

A Six-Three Rule: Reviving Consensus And Deference On The Supreme Court, Jed Handelsman Shugerman

Faculty Scholarship

Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.

One option is to establish the following rule: The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth …

"Death Is Different" - Is Money Different? Criminal Punishments, Forfeitures, And Punitive Damages - Shifting Constitutional Paradigms For Assessing Proportionality, Rachel A. Van Cleave

Publications

Part I of this Article reviews the case law regarding judicial review of both terms of imprisonment and imposition of the death penalty. In this section, I argue for consistency within this area of the law. Some jurisprudence suggests that, because "death is different," proportionality review is appropriate only in the death penalty context, and is either not required or only applies in an extremely narrow example, such as life imprisonment for a parking ticket. Part II examines Supreme Court precedent that analyzes the question of proportionality of forfeitures and punitive damages awards. In the context of forfeitures, the debate …

Constricting Remedies: The Rehnquist Judiciary, Congress, And Federal Power, Judith Resnik

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Electing The Supreme Court, Barry Friedman, Anna Harvey

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Congruence And Proportionality For Congressional Enforcement Powers: Cosmetic Change Or Velvet Revolution?, Elisabeth Zoller

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

"Sir, Yes, Sir!": The Courts, Congress And Structural Injunctions, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This is a deeply confused book. Not that the authors' stance is unclear: They have seen federal courts in action, and they don't like what they see. Their subject is federal judicial supervision of state and local governments through injunctive decrees. The authors' position wouldn't be confused - or at least would be confused in a different way - if they dealt with injunctive decrees aimed at enforcing what the judges took to be constitutional requirements. In such cases there's at least something coherent that can be said about judges displacing democratic decision-making. Sandler and Schoenbrod, though, don't deal with …

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …