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Introduction

Michael A. Bailey and Forrest Maltzman

in The Constrained Court: Law, Politics, and the Decisions Justices Make

Published in print:
2011
Published Online:
October 2017
ISBN:
9780691151045
eISBN:
9781400840267
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691151045.003.0001
Subject:
Law, Legal History

This introductory chapter considers the constraints faced by Supreme Court justices. It begins by discussing the attitudinal model, which assumes that justices are “decision makers who always vote ... More


Measuring Judicial Activism

Stefanie A. Lindquist and Frank B. Cross

Published in print:
2009
Published Online:
May 2009
ISBN:
9780195370850
eISBN:
9780199870790
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195370850.001.0001
Subject:
Law, Comparative Law

This book explores the theoretical and empirical dimensions to this controversial subject. The main aim of the book is to shift the focus of the academic and political debate over judicial activism ... More


Frankfurter and the Intellectualization of Judicial Restraint

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

Published in print:
2011
Published Online:
January 2011
ISBN:
9780195340341
eISBN:
9780199867240
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195340341.003.0005
Subject:
Law, Constitutional and Administrative Law

This chapter focuses on Brandeis's most prominent protégé, Felix Frankfurter, who assumed his seat on the Supreme Court in 1939. It shows how Frankfurter's qualms about the vigorous use of judicial ... More


Postscript: the People, the Court, and the Academics

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

Published in print:
2011
Published Online:
January 2011
ISBN:
9780195340341
eISBN:
9780199867240
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195340341.003.0009
Subject:
Law, Constitutional and Administrative Law

This chapter presents some concluding thoughts. This book has traced the origins of judicial restraint doctrine in the Supreme Court. The chapter recounts a certain body of academic literature ... More


Law Matters

Michael A. Bailey and Forrest Maltzman

in The Constrained Court: Law, Politics, and the Decisions Justices Make

Published in print:
2011
Published Online:
October 2017
ISBN:
9780691151045
eISBN:
9781400840267
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691151045.003.0004
Subject:
Law, Legal History

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial ... More


Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

Evan Tsen Lee

Published in print:
2011
Published Online:
January 2011
ISBN:
9780195340341
eISBN:
9780199867240
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195340341.001.0001
Subject:
Law, Constitutional and Administrative Law

Many legal scholars believe that judges should not be “activists.” But exactly what does it mean for judges to practice “restraint,” and how did that set of practices evolve in America? This book ... More


John Marshall and the Inseparability of Action and Restraint

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

Published in print:
2011
Published Online:
January 2011
ISBN:
9780195340341
eISBN:
9780199867240
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195340341.003.0001
Subject:
Law, Constitutional and Administrative Law

Marbury v. Madison is widely regarded as the case that established judicial review in the United States. But it is also the case that established judicial restraint in the United ... More


Approaches to Judicial Restraint

Gus Van Harten

in Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration

Published in print:
2013
Published Online:
January 2014
ISBN:
9780199678648
eISBN:
9780191757990
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199678648.003.0002
Subject:
Law, Public International Law

This chapter reviews a range of examples of judicial approaches to restraint based especially on institutional rationales in order to evaluate the decision-making of investment treaty arbitrators. It ... More


Comparative Constitutional Reasoning: Recasting its Justification and Operation

Aida Torres Pérez

in Conflicts of Rights in the European Union: A Theory of Supranational Adjudication

Published in print:
2009
Published Online:
September 2009
ISBN:
9780199568710
eISBN:
9780191705571
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199568710.003.0007
Subject:
Law, EU Law

This chapter analyzes the implications of judicial dialogue for the mode of judicial reasoning in interpreting fundamental rights. In particular, it explores the comparative method and judicial ... More


The Aspiration of Institutional Competence

Conor Gearty

in Principles of Human Rights Adjudication

Published in print:
2005
Published Online:
March 2012
ISBN:
9780199287222
eISBN:
9780191700422
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199287222.003.0006
Subject:
Law, Human Rights and Immigration

This chapter is concerned with the approach that should be adopted when the case before the courts is one in which a Convention right is ... More


The Role of Constitutional Theory in the Cycle of Regimes

Jack M. Balkin

in The Cycles of Constitutional Time

Published in print:
2020
Published Online:
September 2020
ISBN:
9780197530993
eISBN:
9780197531020
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197530993.003.0008
Subject:
Law, Constitutional and Administrative Law

Constitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect ... More


Scalia, the Environment, and the Modern Standing Doctrine

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

Published in print:
2011
Published Online:
January 2011
ISBN:
9780195340341
eISBN:
9780199867240
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195340341.003.0008
Subject:
Law, Constitutional and Administrative Law

This chapter focuses on Antonin Scalia. In 1983, as a young judge on the D.C. Circuit, Scalia published a law review article called “The Doctrine of Standing as an Essential Element of the Separation ... More


Restraint Based on Relative Capacity

Gus Van Harten

in Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration

Published in print:
2013
Published Online:
January 2014
ISBN:
9780199678648
eISBN:
9780191757990
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199678648.003.0004
Subject:
Law, Public International Law

This chapter examines the performance of arbitrators in light of judicial approaches to restraint based on relative capacity. It shows that the arbitrators did not show restraint to governments based ... More


Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review

T.R.S. Allan

in Constitutional Justice: A Liberal Theory of the Rule of Law

Published in print:
2003
Published Online:
January 2010
ISBN:
9780199267880
eISBN:
9780191707728
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199267880.003.0006
Subject:
Law, Constitutional and Administrative Law

Constitutional rights and freedoms, limiting the exercise of legislative and executive power, are unlikely to be of much practical value unless they can be judicially enforced. Although the ... More


How the Rise and Fall of Regimes Affects Judicial Review

Jack M. Balkin

in The Cycles of Constitutional Time

Published in print:
2020
Published Online:
September 2020
ISBN:
9780197530993
eISBN:
9780197531020
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780197530993.003.0007
Subject:
Law, Constitutional and Administrative Law

The rise and fall of regimes shapes partisan attitudes about judicial review. How people feel about judicial activism and judicial restraint depends on where they are in political time, and which ... More


Introduction

Gus Van Harten

in Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration

Published in print:
2013
Published Online:
January 2014
ISBN:
9780199678648
eISBN:
9780191757990
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199678648.003.0001
Subject:
Law, Public International Law

This introductory chapter first sets out the book’s purpose, which is to examine how arbitrators make fundamental choices about how to constitute their role in relation to other decision-makers. This ... More


A Substantive Distinction

J. W. F. Allison

in A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law

Published in print:
2000
Published Online:
January 2010
ISBN:
9780198298656
eISBN:
9780191710735
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198298656.003.0008
Subject:
Law, Comparative Law, Legal History

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory ... More


Robert Edgar Megarry 1910–2006

Stephen Cretney

in Proceedings of the British Academy, Volume 153 Biographical Memoirs of Fellows, VII

Published in print:
2008
Published Online:
January 2012
ISBN:
9780197264348
eISBN:
9780191734250
Item type:
chapter
Publisher:
British Academy
DOI:
10.5871/bacad/9780197264348.003.0013
Subject:
History, Historiography

Robert Edgar Megarry (1910–2006), a Fellow of the British Academy, had a career in the law unmatched in its distinction, breadth, and diversity. He not only achieved an outstanding reputation as a ... More


Constitutional Authority

Mark A. Graber

in A New Introduction to American Constitutionalism

Published in print:
2013
Published Online:
January 2014
ISBN:
9780199943883
eISBN:
9780199369799
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199943883.003.0005
Subject:
Law, Constitutional and Administrative Law

Constitutional authority in the United States is a consequence of complex interactions between elected officials, political activists, and unelected justices that more resembles the chaos of the ... More


The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

Thomas M. Keck

Published in print:
2004
Published Online:
March 2013
ISBN:
9780226428840
eISBN:
9780226428864
Item type:
book
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226428864.001.0001
Subject:
Political Science, American Politics

When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them ... More


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