Law Commons^™

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

End The Failed Chevron Experiment Now: How Chevron Has Failed And Why It Can And Should Be Overruled, Jack M. Beermann

Faculty Scholarship

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron …

Countering The Majoritarian Difficulty, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape. This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are …

Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless

Articles

No abstract provided.

Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel

Scholarly Works

The issue of judicial competence and integrity is particularly troubling in the wake of Caperton v. A.T. Massey Coal Co., where the U.S. Supreme Court vacated a state supreme court decision in which a justice—who had received at least $3 million in campaign support from a litigant—cast the deciding vote to relieve the litigant of a liability award of $50 million ($82 million with interest). The Court reached this result, one I view as compelled by common sense, through a 5-4 vote. The dissenters, led by Chief Justice Roberts and Justice Scalia, minimized the danger of biased judging presented by …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Articles

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent …

The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying …

The Right To Bear Arms: A Uniquely American Entitlement, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In District of Columbia v. Heller the Supreme Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right, rather than a collective right tied to state militias. In McDonald v. Chicago, the Supreme Court – in a familiar 5-4 ideological split – held that the 2nd Amendment applies not only to the federal government, but also to state and local gun control laws. In his dissent, Justice Stevens predicted that “the consequences could prove far more …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …