Law Commons^™

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Analyzing Justice Cardozo’S Opinions On The Constitutionality Of The New Deal, Robert J. Pushaw Jr

Touro Law Review

No abstract provided.

Clerking For Scrooge, Barry Cushman

Barry Cushman

During the Supreme Court’s memorable October,1936 term, a young man named John Knox clerked for Justice James Clark McReynolds. Knox kept a diary during the term, and between 1952 and 1963 converted the diary into a 978-page memoir. Yet his own efforts to publish the memoir came to naught. In 1978 he deposited all or a portion of the manuscript at a series of libraries. But there it languished until rescued from obscurity by David Garrow and Dennis Hutchinson, who in 2002 published an edition of the manuscript with the University of Chicago Press. This essay reviews Knox’s remarkable memoir …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

Clerking For Scrooge, Barry Cushman

Journal Articles

During the Supreme Court’s memorable October,1936 term, a young man named John Knox clerked for Justice James Clark McReynolds. Knox kept a diary during the term, and between 1952 and 1963 converted the diary into a 978-page memoir. Yet his own efforts to publish the memoir came to naught. In 1978 he deposited all or a portion of the manuscript at a series of libraries. But there it languished until rescued from obscurity by David Garrow and Dennis Hutchinson, who in 2002 published an edition of the manuscript with the University of Chicago Press. This essay reviews Knox’s remarkable memoir …

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.

Michigan Law Review

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens …

Taking Decisions Seriously, Richard D. Friedman

Reviews

The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …

Telling The Story Of The Hughes Court, Richard D. Friedman

Articles

When Justice Oliver Wendell Holmes, Jr., died in 1935, he left the bulk of his estate to the United States Government. This gift, known as the Oliver Wendell Hnlmes Devise, sat in the Treasury for about twenty years, until Congress set up a Presidential Commission to determine what to do with it. The principal use of the money has been to fund a multivolume History of the United States Supreme Court. The history of the project itself has not always been a happy one, for some of the authors have been unable to complete their volumes. Among them was one …

Switching Time And Other Thought Experiments: The Hughes Court And Constitutional Transformation, Richard D. Friedman

Articles

For the most part, the Supreme Court's decisions in 1932 and 1933 disappointed liberals. The two swing Justices, Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, seemed to have sided more with the Court's four conservatives than with its three liberals. Between early 1934 and early 1935, however, the Court issued three thunderbolt decisions, all by five-to-four votes on the liberal side and with either Hughes or Roberts writing for the majority over the dissent of the conservative foursome: in January 1934, Home Building & Loan Ass'n v. Blaisdell' severely limited the extent to which the Contracts Clause …

Recent Judicial Biographies: A Composite Review, Otis P. Dobie

Vanderbilt Law Review

The great Chief Justice of our time has been considerably recalled in the period under review. Pusey,' in a lengthy readable treatment that does not emphasize the legal, views Hughes as a liberal of circa 1910 who was uncomfortable but acquiescent amid the 1930's progressions. Interesting tidbits include a moving account of Hughes' mission to Holmes to request his resignation; bar letters to White complaining of the vagueness of Holmes' opinions; the friendship of Hughes with White and Harlan; Hughes' concern over the tendency of the New Deal brethren to expansively construe statutes and approve state taxes on interstate commerce …

Has The Constitution Gone?, John A. Fairlie

Michigan Law Review

As far back as 1828, Chief Justice Marshall is quoted as saying: "Should Jackson be elected, I shall look upon the government as virtually dissolved." A few years later, when Taney was appointed Chief Justice by Jackson, Daniel Webster wrote: "Judge Story thinks the Supreme Court is gone, and I think so too." Soon afterwards, when the newly constituted Court rendered decisions upholding statutes from which Story dissented, the latter wrote to Judge McLean: "There will not, I fear, ever in our day, be any case in which a law of a State or of Congress will be declared …