Judges Commons^™

Republican Party Of Minnesota V. White: The Lifting Of Judicial Speech Restraint, David B. Bogard

University of Arkansas at Little Rock Law Review

No abstract provided.

Mediated Popular Constitutionalism, Barry Friedman

Michigan Law Review

There are divergent views in the legal academy concerning judicial review, but at their core these views share a common (and possibly flawed) premise. The premise is that the exercise of judicial review is countermajoritarian in nature. There is a regrettable lack of clarity in the relevant scholarship about what "countermajoritarian" actually means. At bottom it often seems to be a claim, and perhaps must be a claim, that when judges invalidate governmental decisions based upon constitutional requirements, they act contrary to the preferences of the citizenry. Some variation on this premise seems to drive most normative scholarship regarding judicial …

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Patriotism: Do We Know It When We See It?, A. Wallace Tashima

Michigan Law Review

In a small, triangular plot, a short distance north of the Capitol in Washington, D.C., is the recently dedicated "National Japanese American Memorial to Patriotism." One of the primary purposes of the memorial is to recall publicly the forced removal of Japanese Americans from the Pacific coast at the beginning of World War II and their imprisonment in government internment camps for the duration of the war. The incident is worth recalling, of course, if for no other reason than as a constant reminder that we must not let a similar tragedy befall any other group of Americans. But one …

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 …

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Michigan Law Review

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better …

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

Disarming The Confirmation Process, Michael M. Gallagher

Cleveland State Law Review

To improve the current process and eliminate the bitter nature of confirmation hearings, Senators should not consider a nominee's ideology in determining whether to vote for that nominee. Ideological scrutiny lacks historical and constitutional support; it has led to repeated, prolonged battles that threaten to draw the confirmation process into a dangerous stalemate. Removing ideology from judicial nominations would return the confirmation process to its original understanding, one in which the President enjoys the dominant role. Those who argue that allowing the President, not the Senate, to consider a nominee's ideology would harm the federal judiciary and ignore the nature …

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

Articles

Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …

Caseload Burdens And Jurisdictional Limitations: Some Observations From The History Of The Federal Courts, Edward A. Purcell Jr.

NYLS Law Review

No abstract provided.

Rethinking Fairness: Principled Legal Realism And Federal Jurisdiction, Aviam Soifer

NYLS Law Review

No abstract provided.

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

Designing Judicial Review: A Comment On Schauer, Emily Sherwin

Cornell Law Faculty Publications

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.

Democracy, Not Deference: An Egalitarian Theory Of Judicial Review, Ronald C. Den Otter

Kentucky Law Journal

No abstract provided.

Remarks Of Seth P. Waxman At The Memorial Observance For Justice Byron R. White, United States Supreme Court, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Members of the Court, members of the family, and friends of Justice White- Alone among today's speakers, I met Justice White only late in his life. Growing up in the law, my relationship with him was the one many kids today have with Michael Jordan - I wanted to be "like White" -like the kind of man he was. I still have that aspiration. Like Byron White, I served in the Department of Justice and was altered forever by that honorable institution. And - like Justice White, in my own lesser way, I strove within the walls of this institution …

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

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 …

The Unbearable Rightness Of Bush V. Gore, Nelson Lund

Cardozo Law Review

No abstract provided.

Brief Of Conference Of Chief Justices As Amicus Curiae Supporting Respondents, Republican Party Of Minnesota V. Kelly, No. 01-521 (U.S. Feb. 19, 2002), ., Roy A. Schotland

U.S. Supreme Court Briefs

No abstract provided.

Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles

Faculty Scholarship

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …

Constitutional Law Leading Cases: Judicial Elections, Nathan B. Oman

Faculty Publications

No abstract provided.

Beyond Interpretation, Pierre Schlag

Publications

No abstract provided.

Comment On Professor Carrington's Article "The Independence And Democratic Accountability Of The Supreme Court Of Ohio", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In my view, whether or not Article III is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal …

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Is The Rehnquist Court An "Activist" Court? The Commerce Cause Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called "judicial activism"? To answer this question, we must clarify the meaning of the term "judicial activism." With this meaning in hand, the author examines the Court's Commerce Clause cases. The answer he …

The Bush Administration And Appeals Court Nominees, Carl Tobias

William & Mary Bill of Rights Journal

No abstract provided.