Lynn A. Baker (Texas) & Ernest A. Young (Texas), Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75 (2001)
Unfinished. Not entirely helpful. Basically, federalism is good, federalism wasn't being enforced before, thank god federalism is being enforced now. Of course, that can be argued with - it's not that federalism wasn't being enforced, it's that the boundary lines were drawn very expansively, and Congress never crossed over them.
Interesting references
Peter M. Shane, Federalism's Old Deal: What's Right and Wrong With Conservative Judicial Activism, 45 Vill. L. Rev. 201 (2000)
Dan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U. L. Rev. 611 (2000)
John Gibbons, Our Federalism, 12 Suffolk U. L. Rev. 1087 (1978)
Monday, April 23, 2007
Inside the Federalism Cases: Concern About the Federal Courts
Ann Althouse (Wisconsin), Inside the Federalism Cases: Concern About the Federal Courts, 574 Annals Am. Acad. Pol. & Soc. Sci. 132 (2001)
Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.
Thinks that the federalism decisions are really about wanting to lessen the burden on the federal courts, cut the caseload. Also refers to the Congress "taking advantage" of the Court's relative hands-off attitude, and that causing a Court backlash. Not much of real use, I think.
Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes
John S. Baker, Jr. (LSU), Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545 (2005)
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Should Liberals Fear Federalism?
Lynn A. Baker (Texas), Should Liberals Fear Federalism?, 70 U. Cin. L. Rev. 433 (2002)
Liberals should favor judicial enforcement of states' rights. Two functions: provides "outlier" or "minority" states protection from homogenization (see Raich); mediates the tensions between different individual rights. Thus, judicial enforcement increases diversity, and thus increases aggregate social welfare (there's a missing step there - how does diversity automatically mean better social welfare?).
Gives three reasons why the federalism revolution suffers from an image problem: relations to liberal diversity values isn't understood; historical linkage of states' rights to slavery obscures the issue; and the recent configuration of political forces isn't viewed in historical context.
Not of too much value, I guess, though perhaps as a counterpoint to things like Rubenfeld, i.e. "Not everyone thinks the revolution is bad for liberal values."
Liberals should favor judicial enforcement of states' rights. Two functions: provides "outlier" or "minority" states protection from homogenization (see Raich); mediates the tensions between different individual rights. Thus, judicial enforcement increases diversity, and thus increases aggregate social welfare (there's a missing step there - how does diversity automatically mean better social welfare?).
Gives three reasons why the federalism revolution suffers from an image problem: relations to liberal diversity values isn't understood; historical linkage of states' rights to slavery obscures the issue; and the recent configuration of political forces isn't viewed in historical context.
Not of too much value, I guess, though perhaps as a counterpoint to things like Rubenfeld, i.e. "Not everyone thinks the revolution is bad for liberal values."
Radicals in Tweed
Saikrishna Prakash (San Diego), Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors are Wrong For America, 106 Colum. L. Rev. 2207 (2006)
Review essay of Sunstein's Radicals in Robes. Sunstein apparently argues for minimalism in the book, but Prakash says that minimalism is only Sunstein's argument because the "wrong" people are in power. If this were Brennan and Marshall running the court, Sunstein wouldn't be arguing for slow, incremental steps. Sunstein is a consequentialist. He wants good outcomes, and he prescribes methods by which to get them, or at least by which to slow the flow of bad ones.
Moreover, says Prakash, minimalism isn't even a theory of decisionmaking.
Review essay of Sunstein's Radicals in Robes. Sunstein apparently argues for minimalism in the book, but Prakash says that minimalism is only Sunstein's argument because the "wrong" people are in power. If this were Brennan and Marshall running the court, Sunstein wouldn't be arguing for slow, incremental steps. Sunstein is a consequentialist. He wants good outcomes, and he prescribes methods by which to get them, or at least by which to slow the flow of bad ones.
Moreover, says Prakash, minimalism isn't even a theory of decisionmaking.
Unpacking Show Trials
Jeremy Peterson (Law Clerk, Aldisert, 3d Cir.), Unpacking Show Trials: Situating the Trial of Saddam Hussein, 48 Harv. Int'l L.J. 257 (2007)
Breaks down show trials into two elements: increased probability of conviction from government planning and control; focus on the audience outside rather than the defendant inside. I disagree with both elements: show trials could be civil, and show trials could be for the purpose of acquittal.
Breaks down a bunch of characteristics of show trials. Talks about whether Saddam's trial was a show trial (it was; gee, you think?).
I don't really buy most of the argument, and I think a better dichotomy can be drawn between show and political trials. Perhaps just going back to Kirchheimer for a lot of it, but also Eric Posner might have some good things to say in his paper.
This was the paper that inspired me to want to write my own in this area, because it's really kind of inadequate. As for other examples to examine: Lynne Stewart, Scooter Libby.
Interesting references
Leora Belsky, Transformative Justice: Israeli Identity on Trial (2004)
Georgia Wralstead Ulmschneider, Rape and Battered Women's Self-Defense Trials as "Political Trials": New Perspectives on Feminists' Legal Reform Efforts and Traditional "Political Trials" Concepts, 29 Suff. U. L. Rev. 85 (1995)
Breaks down show trials into two elements: increased probability of conviction from government planning and control; focus on the audience outside rather than the defendant inside. I disagree with both elements: show trials could be civil, and show trials could be for the purpose of acquittal.
Breaks down a bunch of characteristics of show trials. Talks about whether Saddam's trial was a show trial (it was; gee, you think?).
I don't really buy most of the argument, and I think a better dichotomy can be drawn between show and political trials. Perhaps just going back to Kirchheimer for a lot of it, but also Eric Posner might have some good things to say in his paper.
This was the paper that inspired me to want to write my own in this area, because it's really kind of inadequate. As for other examples to examine: Lynne Stewart, Scooter Libby.
Interesting references
Leora Belsky, Transformative Justice: Israeli Identity on Trial (2004)
Georgia Wralstead Ulmschneider, Rape and Battered Women's Self-Defense Trials as "Political Trials": New Perspectives on Feminists' Legal Reform Efforts and Traditional "Political Trials" Concepts, 29 Suff. U. L. Rev. 85 (1995)
Saturday, April 14, 2007
Clear Statement Rules
William N. Eskridge, Jr. (Yale) & Philip P. Frickey (Boalt), Quasi-Constitutional Law: Clear Statement Rules As Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992). (excerpts from 621-22 & 638-40 on pgs 615-16 of Federal Courts casebook)
Key quote: "The Court's new super-strong clear statement rules are extraordinarily countermajoritarian: they not only pose the possibility of ignoring legislative expectations, but they also make it quite hard for Congress to express its expectations . . . . The decision [in Dellmuth] suggested a certain judicial haughtiness and uncooperativeness that is surely inconsistent with the humble due process of lawmaking rationale for the Court's super-strong clear statement rules."
Key quote: "The Court's new super-strong clear statement rules are extraordinarily countermajoritarian: they not only pose the possibility of ignoring legislative expectations, but they also make it quite hard for Congress to express its expectations . . . . The decision [in Dellmuth] suggested a certain judicial haughtiness and uncooperativeness that is surely inconsistent with the humble due process of lawmaking rationale for the Court's super-strong clear statement rules."
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