|
Written by Prof. Jonathan R. Siegel
|
|
Saturday, 08 December 2007 |
|
Article III justiciability doctrines are often viewed as important checks on judicial overreaching, deriving their ultimate authority from the Constitution and its conception of the proper role of the Judicial Branch. This Article takes on the question of whether such doctrines are really so central or important to prevent unwanted judicial expansion. It concludes that such doctrines are in fact minor determinants of judicial behavior. This Article finds that in contrast to other constitutional checks on the power of government, it is difficult to discern what intelligible purpose Article III justiciability doctrines actually serve. After undertaking an investigation into this question, Siegel argues that proposals by courts and scholars as to the purposes of justiciability doctrines are by and large implausible. Out of this thicket of confusion, Seigel proposes a new way to intelligently apply justiciability doctrines-to "reconstitute" justiciability into a purposeful restriction. This reconstitution would focus on whether justiciability doctrines actually enhance judicial function. Such a purpose-based view of justiciability would seek to limit the substance but not the form of judicial action. The Article argues that this approach would allow a relaxation of justiciability doctrines that would nonetheless prevent the Judiciary from exceeding its proper role in a democratic society.
|
|
Last Updated ( Saturday, 08 December 2007 )
|
|
|
Written by Profs Glenn Harlan Reynolds & Brannon P. Denning
|
|
Tuesday, 15 January 2008 |
|
Glenn Harlan Reynolds & Brannon P. Denning The Supreme Court’s grant of certiorari in the District of Columbia gun-ban case promises to make this Term “The Year of the Gun.” Though the Court will review many other important cases, the Heller case presents a unique constellation of characteristics: It involves the scope of a right that many Americans regard as highly important, but that has not been significantly addressed by the Supreme Court before, and it does so in an unusually open national election year, with no incumbent or obvious successor running for president. Though the Court did address Second Amendment issues somewhat in the 1939 case of United States v. Miller, the treatment was limited, and uninformed by opposing counsel because only the federal government was represented. The Court’s decision in Heller will thus give the Justices a chance to address—or to duck—a number of important Second Amendment issues and may also pose potential difficulties for the Court’s existing jurisprudence of unenumerated rights, in a setting in which the political ramifications are likely to be obvious and immediate.
|
|
Last Updated ( Friday, 18 January 2008 )
|
|
|
Written by Prof Anthony J. Bellia Jr.
|
|
Saturday, 08 December 2007 |
|
In his response to Professor Siegel’s article A Theory of Justiciability, Professor Bellia takes a closer look at some of the article’s conclusions. In particular, Professor Bellia responds to the assertion that congressional power to generate justiciability demonstrates the purposelessness of justiciability doctrines. Are justiciability doctrines an effective limit on federal power? If constraining the power of a federal institution can be a legitimate constitutional purpose in itself, does congressional control over justiciability act as a real, and not merely illusory, limit on judicial power? Professor Bellia examines important historical thought on the subject—including James Madison’s concerns expressed at the Federal Convention and John Marshall’s writings in a number of Marshall Court decisions—as evidence that persons knowledgeable in law reasonably understood the forms that limited judicial power to function as constitutional limitations. The result places the analysis at the center of a fundamental separation-of-powers debate over the respective roles of Congress and the federal courts.
|
|
Last Updated ( Tuesday, 15 January 2008 )
|
|
|
