Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (51)
- Courts (33)
- Judges (25)
- Supreme Court of the United States (22)
- Administrative Law (17)
-
- Law and Politics (17)
- State and Local Government Law (15)
- Jurisprudence (14)
- Legislation (14)
- Law and Society (11)
- President/Executive Department (11)
- Comparative and Foreign Law (9)
- Public Law and Legal Theory (8)
- Social and Behavioral Sciences (7)
- Arts and Humanities (5)
- Jurisdiction (5)
- Public Affairs, Public Policy and Public Administration (5)
- Civil Rights and Discrimination (4)
- Law and Economics (4)
- Oil, Gas, and Mineral Law (4)
- Public Policy (4)
- Environmental Law (3)
- Environmental Sciences (3)
- Forest Management (3)
- Forest Sciences (3)
- Land Use Law (3)
- Law and Philosophy (3)
- Legal Profession (3)
- Institution
-
- University of Michigan Law School (22)
- University of Colorado Law School (10)
- Georgetown University Law Center (7)
- Columbia Law School (5)
- Duke Law (5)
-
- Pepperdine University (5)
- University of Pittsburgh School of Law (4)
- Maurer School of Law: Indiana University (3)
- Selected Works (3)
- SelectedWorks (3)
- University of Pennsylvania Carey Law School (3)
- Boston University School of Law (2)
- Seattle University School of Law (2)
- Touro University Jacob D. Fuchsberg Law Center (2)
- University of Maryland Francis King Carey School of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- BLR (1)
- Chicago-Kent College of Law (1)
- Cleveland State University (1)
- Florida International University College of Law (1)
- St. Mary's University (1)
- University at Buffalo School of Law (1)
- University of Arkansas at Little Rock William H. Bowen School of Law (1)
- University of Georgia School of Law (1)
- Western University (1)
- Publication Year
- Publication
-
- Michigan Law Review (16)
- Faculty Scholarship (15)
- Articles (7)
- Georgetown Law Faculty Publications and Other Works (7)
- Publications (7)
-
- Journal of the National Association of Administrative Law Judiciary (5)
- All Faculty Scholarship (3)
- Articles by Maurer Faculty (3)
- The Federal Land Policy and Management Act (Summer Conference, June 6-8) (3)
- Scholarly Works (2)
- Seattle University Law Review (2)
- Touro Law Review (2)
- Andrés Palacios Lleras (1)
- Chicago-Kent Law Review (1)
- Craig Martin (1)
- Edsel F Tupaz (1)
- ExpressO (1)
- Faculty Articles (1)
- Faculty Publications (1)
- Georgia Journal of International & Comparative Law (1)
- Journal Articles (1)
- Law Faculty Articles and Essays (1)
- Law Publications (1)
- M. C. Mirow (1)
- Mark Graber (1)
- Michigan Journal of Race and Law (1)
- SJD Dissertations (1)
- Sharon Hamby O'Connor (1)
- University of Michigan Journal of Law Reform (1)
- Publication Type
- File Type
Articles 1 - 30 of 89
Full-Text Articles in Legal History
A Neo-Federalist View Of The Supreme Court’S Docket: Analyzing Case Selection And Ideological Alignment, Arthur D. Hellman
A Neo-Federalist View Of The Supreme Court’S Docket: Analyzing Case Selection And Ideological Alignment, Arthur D. Hellman
Articles
For more than 70 years, scholars have engaged in an intense debate over a core constitutional question: what restraints does the Constitution place on Congress’s power to limit the jurisdiction of the federal courts? Far less attention has been given to an equally important real-life question: how does the operation of the jurisdiction, as defined by Congress and the Supreme Court, comport with the assigned role of the federal courts in the system of government established by the Constitution? This Article takes a novel approach: it draws on constitutional theory to devise a set of tools for addressing the operational …
John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson
John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson
Touro Law Review
This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.
Abandoning Animus, Robert L. Tsai
Abandoning Animus, Robert L. Tsai
Faculty Scholarship
This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …
Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader
Faculty Scholarship
“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Keeping Faith With Nomos, Steven L. Winter
Presidential Whim, Matthew J. Steilen
Presidential Whim, Matthew J. Steilen
Journal Articles
This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of …
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
All Faculty Scholarship
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …
Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan
Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan
All Faculty Scholarship
This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …
Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank
Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank
All Faculty Scholarship
Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …
Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson
Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson
Articles
This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin
Faculty Scholarship
No abstract provided.
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
M. C. Mirow
In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …
Unearthing The Lost History Of Seminole Rock, Amy J. Wildermuth, Sanne H. Knudsen
Unearthing The Lost History Of Seminole Rock, Amy J. Wildermuth, Sanne H. Knudsen
Articles
In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are. Recently members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. We agree. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article — the first historical explication of Seminole …
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Constitution Making In The Countries Of Former Soviet Dominance: Current Development, Rett R. Ludwikowski
Constitution Making In The Countries Of Former Soviet Dominance: Current Development, Rett R. Ludwikowski
Georgia Journal of International & Comparative Law
No abstract provided.
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
Chicago-Kent Law Review
This essay provides a historiographical context for Nelson’s work on judicial review. It argues that Nelson’s integration of intellectual and legal history not only rebutted the instrumentalist historiography that prevailed when he undertook his work on Marshall and judicial review, but also fostered an appreciation of the need to place legal actors in the intellectual context in which they acted. Highlighting the influence of Bernard Bailyn’s pathfinding work on popular sovereignty upon Nelson’s development of his consensus theory, the essay contends that Nelson’s work changed the course of academic readings of Marshall’s jurisprudence to be consistent with a broader acceptance …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender
From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender
SJD Dissertations
In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …
The Constitution And Legislative History, Victoria Nourse
The Constitution And Legislative History, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.
This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should …
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
Judicial Deference To Administrative Interpretations Of Law, Antonin Scalia
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Judicial Independence In Administrative, Adjudication: Past, Present, And Future , Ann Marshall Young
Judicial Independence In Administrative, Adjudication: Past, Present, And Future , Ann Marshall Young
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Creeping Judicialization In Special Education Hearings?: An Exploratory Study, Perry A. Zirkel, Zorka Karanxha, Anastasia D'Angelo
Creeping Judicialization In Special Education Hearings?: An Exploratory Study, Perry A. Zirkel, Zorka Karanxha, Anastasia D'Angelo
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Supreme Court's Take On Immigration In Nken V. Holder: Reaffirming A Traditional Standard That Affords Courts More Time And Flexibility To Decide Immigration Appeals Before Deporting Aliens, Elizaveta Kabanova
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Accountability In The Administrative Law Judiciary: The Right And The Wrong Kind, Edwin L. Felter Jr
Accountability In The Administrative Law Judiciary: The Right And The Wrong Kind, Edwin L. Felter Jr
Journal of the National Association of Administrative Law Judiciary
This article discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary. The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability. The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other …
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much of what …
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Michigan Journal of Race and Law
The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take …
Appeals To The Privy Council Before American Independence: An Annotated Digital Catalogue, Sharon Hamby O'Connor, Mary Sarah Bilder
Appeals To The Privy Council Before American Independence: An Annotated Digital Catalogue, Sharon Hamby O'Connor, Mary Sarah Bilder
Sharon Hamby O'Connor
Between the later seventeenth century and American independence, appeals from colonial high courts were taken to the Privy Council in England. These appeals are the precursors of today’s appeals to the U.S. Supreme Court. Their legal and policy issues can be reconstructed from the outcome of the appeals, the briefs of crown law officers, related Privy Council documents, and handwritten notations on these materials. This article describes Appeals to the Privy Council Before American Independence, an annotated digital catalogue of appeals from the thirteen colonies with links and digital images providing access to this material, now compiled from a variety …
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe
Michigan Law Review
Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …