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In his Response to Professor Sacharoff’s Article, Professor Gerhardt critiques the use of sources, contending that Professor Sacharoff reads too much into the “antimonarchical premises” of the Constitution and too little into other sources. Gerhardt suggests alternatives to Sacharoff’s reading of the structure and context of the Constitution, as well as precedents and analogies that might inform our judgment about the extent to which former presidents might or should have any control over executive privilege.
In her Response to Professor Tidmarsh’s Article articulating the “do no harm” principle, Professor Burch explores Tidmarsh’s theory from a procedural legitimacy perspective. She considers the assumption that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus. She argues that (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles; and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class-action legitimacy.
In his Response to Professor Young’s article, Professor Parry evaluates Young’s assertion that he is defending Medellín even as he pointedly fails to endorse the Court’s reasoning. He also critiques areas in which he finds Young’s reasoning incomplete: his argument that federal courts should give no deference to a foreign or international tribunal’s treaty interpretation; his broad assertion that some treaties are non-self-executing because of vague treaty language; and his doctrinal conclusion that the Supremacy Clause does not require self-execution.
In this piece, Sarah Agudo responds to Professor Wildenthal's criticism of a prior Texas Law Review article authored by her and Professor Steven G. Calabresi discussing, among more than 100 other individual rights, grand jury rights. Agudo responds to several of Professor Wildenthal's critiques of her methodology, while noting that some of his suggestions provide useful areas in which to expand the research on the state constitutional history of grand juries in future publications.
In this Response Note to Jeremy Waldron's The Core of the Case Against Judicial Review, the Authors defend judicial majoritarianism, which is the use of majority decisionmaking among judicial officers who possess the power of judicial review. In defending judicial majoritrianism, the Authors contend that Professor Waldron's arguments against majoritarian decisionmaking merely reassert traditional arguments against judicial review rather than adding any new ideas to the debate.
The Authors first dispel the notion that judicial majoritarianism makes courts comparable to legislative bodies, arguing that courts use majoritarian decisionmaking to maximize the chances of reaching the right answer, while legislatures use the majoritarian process to express the wishes of the people. Next, the Authors offer defenses of judicial majoritarianism that comport with both the instrumentalist and non-instrumentalist approaches to judicial review. In offering these defenses, the Authors point out that the focus of the dialectic shifts back to the original arguments against judicial review.
In this response piece, Professor Mae C. Quinn examines Brian Tamanaha's efforts to recast the "who" and "what" of the Legal Realism movement in his recent article. Professor Quinn applauds Professor Tamanaha's attempt to rescue from obscurity some of Legal Realism's forgotten pioneers. But as Professor Tamanaha, like others examining the Realist movement, neglected to discuss the contribution of women to the movement, Professor Quinn seeks to recover this history. Specifically, she examines the story of Judge Anna Moscowitz Kross, whose legal career embodied the tenants of Realism that Professor Tamanaha acknowledged as most significant.
In this Essay, Douglas tells us that "[t]he most surprising action from the Supreme Court’s latest term may be what it did not do: strike down Section 5 of the Voting Rights Act . . . as unconstitutional." Douglas explores the Court's recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress's reauthorization of the "preclearance" provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court's 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.
Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO. He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases. He concludes that the Court’s recent approach in NAMUDNO and other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have "compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results)."
This Essay includes an Appendix -- a table of VRA cases and individual Justices' voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court's jurisprudence concerning the Voting Rights Act.
In this comment, Professor Tuerkheimer advances the notion of “control killings,” or viewing domestic violence homicide as the final act in a pattern of various forms of abusive conduct.
She begins by noting that the Supreme Court evinced a fairly sophisticated understanding of domestic violence as a pattern of conduct in Giles, but that it was still wanting in some respects. The Court overlooks the centrality of power and control to the batterer’s design, and so fails to capture the true essence of battering. Next, she focuses on Professor Lininger’s third per se rule—inferring intent to silence a victim from a history of abuse and isolation. This, she says, raises the complex issues that need to be addressed properly. Professor Lininger suggests that the inquiry under this rule would properly be to quantify the amount of domestic violence necessarily entailing an intent to silence the victim, but Professor Tuerkheimer is not convinced. She believes that the aim should be to focus on demystifying the connection between the murder and the past abuse. This would require lower courts to recognize that the central feature of domestic violence is power/control and that homicide in this context is the ultimate act of control. She then proceeds to provide evidence that the central feature of domestic violence is power or control over the victim, including conduct other than acts of physical violence. Finally, Professor Tuerkheimer concludes that in the forfeiture context courts should be concerned whether the defendant has, through all of his battering conduct, acted to reinforce the victim’s connection to him, fortifying her reluctance to ally herself with the state against him in a prosecution.
