Jurisprudence Commons^™

Three Mistakes About Interpretation, Paul Campos

Publications

No abstract provided.

Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz

Michigan Law Review

In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making of …

Constitutional Scepticism, Robin West

Georgetown Law Faculty Publications and Other Works

Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …

Due Process

Touro Law Review

No abstract provided.

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

The First Amendment, Burt Neuborne

Touro Law Review

No abstract provided.

Original Intent: "With Friends Like These…", Thomas Gibbs Gee

Michigan Law Review

A Review of Original Intent and the Framer's Constitution by Leonard W. Levy

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

In The Beginning: The Washington Supreme Court A Century Ago, Charles H. Sheldon, Michael Stohr-Gillmore

Seattle University Law Review

This Article will discuss (1) the politics that influenced the drafting of the judicial article (article IV) in the constitutional convention; (2) the election of the first five members of the bench and the backgrounds of those inaugural judges; (3) the particular approach toward judicial review adopted by these five jurists (activism-restraint); and (4) the personal relations among these members of the supreme court. This Article will provide a personal perspective of the first five judges and their court.

Surrogate Parenting After Baby M: The Ball Moves To The Legislature’S Court, John R. Dunne, Gregory V. Serio

Touro Law Review

No abstract provided.

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

Book Review, Pierre Schlag

Publications

No abstract provided.

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Book Review: Development Control, Geoffrey Bennett

Journal Articles

Mr. Alder's book is a lucid and informative contribution on the subject of development control. The book is largely concerned with analyzing the impact of judicial decisions in the [English] courts on planning law relating to development control.

The Courts And Social Policy: Substance And Procedure, Henry J. Friendly

University of Miami Law Review

Judge Friendly admits that the courts must address themselves in some instances to issues of social policy. He would prefer, however, that a court rest its decision on an ascertainable jural principle rather than support its decision on the basis of its conception of what is desirable social policy. When courts do rely on social or economic data, they should observe procedural fairness as a goal in its own right and as a tool towards obtaining correct and complete information. When the economic and social data is indeterminate, a court should refuse to base its decision on such information. If …

Beyond Legitimacy, Steven Wisotsky

University of Miami Law Review

The author analyzes the scholarly debate over the legitimacy of the institution of judicial review. He suggests that, as a reaction to unjustified criticism of the institution, defenders of judicial review have articulated propositions which advance constitutional jurisprudence beyond the issue of legitimacy. He argues that the time has come for courts to de-emphasize prudential considerations and to concentrate on the substantive correctness of their decisions and on the standards of review which the courts employ.

Authority And Autonomy: The State, The Individual And The Family, M. David Gelfand

University of Miami Law Review

This commentary focuses primarily upon the views expressed by Justice Rehnquist in his de Hirsch Meyer lecture. The author argues that a corollary to Justice Rehnquist's view that the judiciary should defer to the authority of private institutions over the individual, to protect those institutions, would be to adopt a judicial attitude of supporting private institutions against legislative interference. An examination of Justice Rehnquist's judicial opinions in the area of constitutional family law reveals exactly the opposite position. The author concludes that Justice Rehnquist's position of judicial deference to legislative decisions over the family may lead to destruction of the …

The Judging Class, Kenneth M. Casebeer

University of Miami Law Review

The author traces the common thread running through the analysis of judicial review by the symposium speakers. He posits that while all three speakers support equally activist positions, their allegiance to divergent values and political theories results in their opposed statements on the activist debate. He compares the dialogue in this symposium to that of the Justices in the 1940's, which discourse explicitly was grounded in a struggle over values. The author concludes that courts must structure the form of their opinions in a manner which clearly demonstrates the relationship between the chosen social values and the resulting decision.

The Adversary Society: Keynote Address Of The Third Annual Baron De Hirsch Meyer Lecture Series, William H. Rehnquist

University of Miami Law Review

In recent years litigants have pressed the courts to resolve disputes which were formerly regulated by other social and political institutions. Mr. Justice Rehnquist stresses the crucial importance of nongovernmental institutions in our society. He discusses the need to evaluate the disruptive effect of an adversary proceeding between parties who must continue in an ongoing relationship after their dispute has been settled. The author then suggests that in order to preserve certain social institutions, limits must be placed on the use of adversary proceedings.

Seven Pluralist Fallacies: In Defense Of The Adversary Process-A Reply To Justice Rehnquist, Laurence H. Tribe

University of Miami Law Review

The author analyzes the role of litigation in a pluralistic society through his discussion of the "pluralist's fallacies," seven characteristic errors underlying much opposition to judicial activism. He advocates a large and active role for the adversary process in order to ensure that less established groups have a forum in which to protect their interests.

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Michigan Law Review

This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …

American Liberals And Judicial Activism: Alexander Bickel's Appeal From The New To The Old, Maurice J. Holland

Indiana Law Journal

No abstract provided.

Book Reviews, Max Rheinstein, Eugene V. Rostow, William O. Thweatt

Vanderbilt Journal of Transnational Law

JUDICIAL REVIEW IN THE CONTEMPORARY WORLD

By Mauro Cappelletti

Indianapolis: Bobbs Merrill, 1971. Pp. xi, 117. $8.50 ($4.50 student edition).

reviewer: Max Rheinstein

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THE PRICE OF INTERNATIONAL JUSTICE

Philip C. Jessup

New York: Columbia University Press, 1971. Pp. ix, 82. $5.95.

reviewer: Eugene V. Rostow

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THREE WORLDS OF DEVELOPMENT: THE THEORY AND PRACTICE OF INTERNATIONAL STRATIFICATION

By Irving Louis Horowitz

New York: Oxford University Press, 1972. Pp. xxx, 556. $15.00 (Paperback, $3.50).

reviewer: William O. Thweatt

Haines: The Revival Of Natural Law Concepts, Edwin W. Tucker

Michigan Law Review

A Review of The Revival of Natural Law Concepts by Charles Grove Haines

Hyneman: The Supreme Court On Trial, William W. Van Alstyne

Michigan Law Review

A Review of The Supreme Court on Trial. By Charles S. Hyneman

Llewellyn: The Common Law Tradition- Deciding Appeals, Luke K. Cooperrider

Michigan Law Review

A Review of The Common Law Tradition- Deciding Appeals. By Karl N. Llewellyn.

Administrative Law - Judicial Control - Appellate Review Of Federal Trade Commission Proceedings, David A. Nelson S. Ed.

Michigan Law Review

During its forty-five year life the Federal Trade Commission has gone through some difficult periods to emerge today as one of the fundamental instrumentalities of government in the regulation of business. Its vast powers and influence, well known to lawyers, will not be explored here. Rather, the purpose of this comment is to appraise the extent of control which the judiciary now exercises over the commission in its adjudicative functions, so as to offer some indication to the practitioner of the probabilities regarding the outcome of judicial review on an appeal beyond the full commission. The approach to be used …

Judicial Review In Europe, Gottfried Dietze

Michigan Law Review

The years following the Second World War witnessed a wave of constitution making in Europe. In East and West alike, popular government was instituted through new basic laws. But whereas the constitutions of Eastern Europe established a Rousseauistic form. of democracy through the creation of an omnipotent legislature, those of the West, while reflecting a belief in parliamentary government, to a larger or smaller degree limited the power of the legislature through the introduction of judicial review. This acceptance of judicial review can be attributed mainly to two factors. It sprung from a distrust of a parliamentarism under which, during …