Law Commons^™

Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan

Chicago-Kent Law Review

The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …

Free Speech Federalism, Adam Winkler

Michigan Law Review

For decades, constitutional doctrine has held that the Constitution's guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict …

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

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

Shruti Rana

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. …

The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber

Mark Graber

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and …

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

Vanderbilt Law Review

From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld,6 and Medellin v. Texas,7 the …

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 …

A Tale Of Two Maps: The Limits Of Universalism In Comparative Judicial Review, Adam M. Dodek

Osgoode Hall Law Journal

For most of the twentieth century, the dominant paradigm in comparative public law was particularism. This was accompanied by a strong skepticism towards universalist features and possibilities in public law and, especially, constitutional law. With the rise of judicial review after World War I--and especially in Eastern Europe after the collapse of the Soviet Union--comparative judicial review has begun to flourish. However, comparative scholarship on judicial review overemphasizes the centrality of "the question of legitimacy" of judicial review in a democratic polity. This has been a result of the mistaken extrapolation of the American debate over judicial review to other …

The Revolution Will Be Sub Silento: The Roberts Court And The Democratic Costs Of Judicial Minimalism, Scott E. Lemieux

Scott E Lemieux

Various theorists have touted the virtues of the jurisprudence known as “minimalism,” in which judges avoid broad holdings and try to avoid reaching large constitutional issues if narrower holdings are available. Minimalism, its proponents assert, increases judicial modesty, improves the quality of political deliberation, and enhances the legitimacy of the court. The first terms of the Roberts Court (as well as the late Rehnquist Court), however, raise doubts about these purported virtues. In practice, judicial minimalism does not have a strong relationship with judicial modesty, various techniques associated with minimalism carry serious democratic costs, and courts are not inherently entitled …

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

Mark Graber

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 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 …

There Were Great Men Before Agamemnon, William R. Casto

Vanderbilt Law Review

John Marshall is the Agamemnon of Supreme Court history. He is universally considered the Court's greatest Justice, and rightly so. But there were great Justices before Marshall. One of those great Justices was James Iredell. No Justice in the Court's history has provided a more detailed or sophisticated explanation and justification of the doctrine of judicial review. Iredell needs a bard, and this Essay is my ode to his memory.

Irrelevant Oversight: "Presidential Administration" From The Standpoint Of Arbitrary And Capricious Review, Daniel P. Rathbun

Michigan Law Review

The president is now regularly and heavily involved in the decisionmaking processes of administrative agencies. What began in the mid-twentieth century as macro-level oversight has evolved, since the Reagan Administration, into controlling case-level influence. Scholars have hotly debated the legality of this shift and have compellingly demonstrated the need to ensure that agencies remain accountable and that their decisions remain nonarbitrary in the face of presidential involvement. However, as this Note demonstrates, the existing scholarship has not provided an adequate solution to these twin problems. This Note provides a novel and effective solution to the accountability and arbitrariness problems of …

The Conscience Of A Court, Girardeau A. Spann

University of Miami Law Review

No abstract provided.

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? …

Arbitration After Hall Street V. Mattel: What Happens Next?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

The Myth Of The Written Constitution, Todd E. Pettys

Todd E. Pettys

Many Americans have long subscribed to what this Article calls the myth of the written constitution—the claim that the nation’s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans’ attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to …

Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …

"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 …

Determining The Appropriate Standard Of Review In Wto Disputes, Andrew T. Guzman

Cornell International Law Journal

No abstract provided.

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 …

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 …

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. …

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 …

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 …

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 …

In Defense Of “Footnote Four”: A Historical Analysis Of The New Deal’S Effect On Land Regulation In The U.S. Supreme Court, Christopher S. Dodrill

Law and Contemporary Problems

At the turn of the nineteenth century, the US Supreme Court established and reinforced numerous so-called "economic rights." During the Lochner v. New York era, the Court invalidated almost 200 federal and state economic and labor regulations for interfering with the right to contract and for violating substantive due process. In 1937, however, Justice Stone's famous "footnote four" in United States v. Carolene Products Co. closed the coffin on Lochner. After Carolene Products, the Court stopped applying heightened scrutiny to economic legislation, and it began consciously protecting "discrete and insular minorities." Here, Dodrill explains the Lochner-era Supreme Court's standard of …