677,949 research outputs found

    Original Understanding and the Whether, Why, and How of Judicial Review

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    For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must find its popular grounding somewhere other than in the ratification of the Constitution by “We the People.” Yet, despite the prominence and the significance of the academic debate about whether judicial review was part of the original understanding, the answer to the controversy is surprisingly clear: contrary to the Bickelian point of view, judicial review was not created in Marbury. While there is a strong argument that the Constitution’s text contemplates judicial review of federal legislation—and it seems clear that the Supremacy Clause assumes that the federal judiciary has the power to review state legislation—the critical evidence concerning the acceptance of judicial review involves judicial practice. In the years before Marbury, exercises of judicial review were surprisingly common and generated surprisingly little controversy in either the courts or the political arena. As I have written recently, there were thirty-one cases between ratification and Marbury in which state and federal courts invalidated statutes, a number far greater than previously realized. Similarly, Maeva Marcus has shown that, in the first Congresses, Congressmen repeatedly took the position that the courts would review statutes for constitutionality. While acceptance of judicial review was not universal, it is striking—given the prevalence of the view that judicial review was created in Marbury—that the power was exercised so frequently and that the opposition to the exercise of that power was so limited

    New Forms of Judicial Review and the Persistence of Rights - And Democracy-Based Worries

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    Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the long run lead constitutional systems back to wither judicial or legislative supremacy

    Marbury v. Madison Around the World

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    To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines particular elements into an overall system that is nearly unique in the world

    On the Costs and Benefits of Aggressive Judicial Review of Agency Action

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    In this essay, the author undertakes three tasks. The first is to describe some of the difficulties of defining benefits in the setting of judicial review of administrative action. The second task is to offer reasons, though tentative and largely anecdotal ones, for an affirmative answer to the question whether aggressive judicial review has produced net benefits. At the very least, the author suggests, aggressive judicial review has had significant benefits in many settings. The third and final task is to outline some proposals by which to increase the benefits, and decrease the risks, of an aggressive judicial posture in administrative law

    Judicial Review Before \u3ci\u3eMarbury\u3c/i\u3e

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    While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this article shows that it was far more common than previously recognized: there are more than five times as many cases from the Early Republic as the leading historical account found. The article further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries, and they did so even when the legislation could plausibly be squared with constitutional text and prior practice; state courts invalidated state statutes for inconsistency with the federal constitution; and federal courts invalidated state statutes, and, again, they did so even when the statutes could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. The article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute and that courts aggressively protected their power, the power of juries, and the power of the national government

    Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique

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    For roughly a decade, federal legislation has devolved to the states some of Congress\u27s authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection congruence principle is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. Applying a highly deferential standard of review, courts normally uphold congressionally enacted immigration policies discriminating against aliens. By contrast, courts normally invoke strict judicial scrutiny to find state alienage discrimination unlawful. Congressional devolution legislation authorizing states to adopt policies that discriminate against aliens spawn equal protection challenges that do not fit neatly into either category of judicial review: the controversies entail state alienage discrimination but the discrimination being challenged is congressionally authorized. Devolution presents the question whether Congress should be able to immunize the states from strict judicial scrutiny by authorizing the states to adopt discriminatory immigration policies that Congress could itself adopt. That question is the subject of this Article

    Standing to Seek Judicial Review

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    Judicial Review: NEPA and the Courts

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    Due Process Land Use Claims After Lingle

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    The Supreme Court held in Lingle v. Chevron U.S.A. Inc. that challenges to the validity of land use regulations for failing to advance governmental interests must be brought under the Due Process Clause, rather than the Takings Clause, and must be evaluated under a deferential standard. This Article analyzes and evaluates the probable course of such judicial review, and concludes that federal courts will resist due process review of land use decisions for good reasons but not always with an adequate doctrinal explanation. However, state courts can use due process review to provide state level supervision of local land use decisions in the absence of other legislative or administrative checks on local discretion. Such judicial review should focus on decisions reflecting distortions in the local political process

    Judicial review in the democratic system

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    When judges are authorised to invalidate legal acts for being unconstitutional, the competence of the legislator is directly concerned. The question raises, if thus judges do not usurp legislative power. In the traditional doctrine of the separation of powers the parliament is the first power, based on its direct democratic legitimacy. Yet cancelling legal acts completely or partially does evoke more irritations in the public that could be expected. The people seem to have more confidence to the assumed impartiality of the judges than to the results of the parliamentary work which seems to be dominated by the struggles of the parties. The necessity of judicial review mainly is based on the consideration that individual rights even in an authentic democratic system may be violated by a legal act of the parliament. In this case constitutional courts have the very task to defend individual rights, principles of liberty and authentic equality. Therefore it is justified to speak of the “jurisdiction of liberty”, as the Italian constitutional expert Cappelletti has said. But also without such legitimacy in many countries the Courts intervene in the field of the legislator. The courts themselves discuss the limits of judicial interventions, emphasising themselves, that they have to respect the legislative decisions principally, but do not abide always by their own proclaimed principles. In Spanish recent publications it is spoken of the principle “in dubio pro legislatore”, (in case of doubt in favour the legislator), reminding of “in dubio pro reo”, in order to treat the legislative power not worse than the defendant in a criminal process.
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