Michael A. Bailey and Forrest Maltzman
- 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 ...
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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 their unconstrained attitudes.” It then turns to three legal principles that might constrain justices: stare decisis, judicial restraint, and strict construction of the Constitution. Stare decisis is the doctrine that decisions should be consistent with past decisions. Judicial restraint implies that justices should defer to elected officials as much as possible within the bounds established by the Constitution. The remainder of the chapter deals with external constraints followed by an overview of the subsequent chapters.Less
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 their unconstrained attitudes.” It then turns to three legal principles that might constrain justices: stare decisis, judicial restraint, and strict construction of the Constitution. Stare decisis is the doctrine that decisions should be consistent with past decisions. Judicial restraint implies that justices should defer to elected officials as much as possible within the bounds established by the Constitution. The remainder of the chapter deals with external constraints followed by an overview of the subsequent chapters.
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 ...
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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 to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.Less
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 to a more objective, empirically-based approach to analyzing activism in appellate courts. Focusing on the justices' voting behavior on the United States Supreme Court from 1954 to 2004, the book first identifies theoretical dimensions to judicial activism based on scholars' attention to the Court's potential for countermajoritarian action. In particular, the book considers the propensity of the justices to (1) strike down legislation enacted by state and federal elected officials, (2) invalidate executive branch actions in connection with judicial review of administrative agencies, (3) expand the power of the federal judiciary through increasing access to the courts, and (4) alter prevailing legal rules by overturning precedent. All of these dimensions are also evaluated in terms of the justices' propensities to vote in these areas in accordance with their own personal policy preferences. The final chapter creates a “judicial activism scale” for the justices serving on the Court during the Warren, Burger, and Rehnquist Courts.
Evan Tsen Lee
- 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 ...
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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 review were a product of deep professional indoctrination as well as political expediency.Less
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 review were a product of deep professional indoctrination as well as political expediency.
Evan Tsen Lee
- 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 ...
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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 because of its importance and because it provides an interesting narrative of its own. This literature concerns the reconciliation of judicial review and popular sovereignty.Less
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 because of its importance and because it provides an interesting narrative of its own. This literature concerns the reconciliation of judicial review and popular sovereignty.
Michael A. Bailey and Forrest Maltzman
- 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 ...
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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 decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.Less
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 decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.
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 ...
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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 traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the “vested property rights” courts of the early 20th century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as “standing” and “abstention” out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices — John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia.Less
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 traces the cultural, social, and intellectual forces that shaped the contours of judicial restraint from the time of John Marshall, through the “vested property rights” courts of the early 20th century, through the Warren Court, and up to the present. The Supreme Court and the many lower federal courts have long used mystifying technical doctrines known as “standing” and “abstention” out of a professed fidelity to judicial restraint. Yet this book aims to demonstrate that the concept of judicial restraint cannot be meaningfully viewed outside of the varying contexts of American history. The notion of judicial restraint only makes sense in light of the waxing and waning American commitments to property rights and Protestant idealism, to scientific pragmatism, to racial equality, and even to environmental protection and the need to stem climate change. This book focuses on the personalities and lives of powerhouse Supreme Court justices — John Marshall, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, William Brennan, and now Antonin Scalia.
Evan Tsen Lee
- 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 ...
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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 States, and its author, Chief Justice John Marshall, accomplished both with a single stroke. His singular genius was to reject the separation of restraint from action. This chapter presents a brief profile of Marshall and then discusses his opinion on judicial review. It presents his two fundamental ideals. One is that separation of powers principles require that courts exercise the jurisdiction given to them, just as they forbid courts to exercise jurisdiction where it has not been given to them. Marshall's second fundamental ideal, ubi jus, ibi remedium, is closely related to the first. It too implicates the line between law and politics. If one demonstrated a violation of his rights, it is the court's obligation to supply a remedy; the court can not withhold a remedy on grounds that society would be better off if the wrong went unredressed. To withhold a remedy under such circumstances would be to act on policy, which is just politics by another name.Less
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 States, and its author, Chief Justice John Marshall, accomplished both with a single stroke. His singular genius was to reject the separation of restraint from action. This chapter presents a brief profile of Marshall and then discusses his opinion on judicial review. It presents his two fundamental ideals. One is that separation of powers principles require that courts exercise the jurisdiction given to them, just as they forbid courts to exercise jurisdiction where it has not been given to them. Marshall's second fundamental ideal, ubi jus, ibi remedium, is closely related to the first. It too implicates the line between law and politics. If one demonstrated a violation of his rights, it is the court's obligation to supply a remedy; the court can not withhold a remedy on grounds that society would be better off if the wrong went unredressed. To withhold a remedy under such circumstances would be to act on policy, which is just politics by another name.
Gus Van Harten
- 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 ...
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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 outlines four broad approaches to adjudicative restraint: abstention, general deference, general balancing, and in-built restraint. It also discusses other legal contexts for judicial restraint.Less
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 outlines four broad approaches to adjudicative restraint: abstention, general deference, general balancing, and in-built restraint. It also discusses other legal contexts for judicial restraint.
Aida Torres Pérez
- 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 ...
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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 self-restraint as mechanisms contributing to ECJ's authority-building. These mechanisms have been highly contested in the literature. First, the chapter articulates a normative justification of the comparative method for giving meaning to EU fundamental rights. In addition, it expands on how the ECJ should operationalize this method, eschewing lowest and highest standard approaches. The comparative method should be aimed at better understanding the values informing the meanings attributed to fundamental rights across the states. This inter-state comparison would help to strengthen common understandings, while fostering an in-depth appraisal of pervasive particularities. Thereafter, ECJ's deference to state courts allowing for diversity in rights interpretation are explored.Less
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 self-restraint as mechanisms contributing to ECJ's authority-building. These mechanisms have been highly contested in the literature. First, the chapter articulates a normative justification of the comparative method for giving meaning to EU fundamental rights. In addition, it expands on how the ECJ should operationalize this method, eschewing lowest and highest standard approaches. The comparative method should be aimed at better understanding the values informing the meanings attributed to fundamental rights across the states. This inter-state comparison would help to strengthen common understandings, while fostering an in-depth appraisal of pervasive particularities. Thereafter, ECJ's deference to state courts allowing for diversity in rights interpretation are explored.
Conor Gearty
- 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 ...
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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 engaged. It looks at the atmosphere of the case, and the policy or the institutional background against which the right is scrutinized and applied. Taking as an example the case of Mrs. Pretty, who suffered from a motor neurone disease with no hope of recovery, the first section looks at the separation of powers and the Human Rights Act. The second section examines when judges should act, looking at the lessons from the Strasbourg case law. The third section explores judicial restraint under the Human Rights Act. The fourth section looks at the engaging principle under the Human Rights Act.Less
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 engaged. It looks at the atmosphere of the case, and the policy or the institutional background against which the right is scrutinized and applied. Taking as an example the case of Mrs. Pretty, who suffered from a motor neurone disease with no hope of recovery, the first section looks at the separation of powers and the Human Rights Act. The second section examines when judges should act, looking at the lessons from the Strasbourg case law. The third section explores judicial restraint under the Human Rights Act. The fourth section looks at the engaging principle under the Human Rights Act.
Jack M. Balkin
- 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 ...
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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 changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.Less
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 changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.
Evan Tsen Lee
- 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 ...
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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 of Powers.” In it, he laid bare many of his beliefs about the relationship among the three branches of the federal government. Scalia's theory of standing doctrine—as protection against courts telling majorities how best to pursue their own interests—resonated the most deeply in the environmental cases, where it was obvious that all citizens were similarly vulnerable.Less
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 of Powers.” In it, he laid bare many of his beliefs about the relationship among the three branches of the federal government. Scalia's theory of standing doctrine—as protection against courts telling majorities how best to pursue their own interests—resonated the most deeply in the environmental cases, where it was obvious that all citizens were similarly vulnerable.
Gus Van Harten
- 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 ...
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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 on rationales invoked by many courts. In cases where arbitrators engaged in abstention, deference, or balancing, these approaches to restraint were nearly always ring-fenced within a particular treaty standard. Even when the arbitrators invoked various terms that might signal restraint, it was more often to expand than to contain their authority.Less
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 on rationales invoked by many courts. In cases where arbitrators engaged in abstention, deference, or balancing, these approaches to restraint were nearly always ring-fenced within a particular treaty standard. Even when the arbitrators invoked various terms that might signal restraint, it was more often to expand than to contain their authority.
T.R.S. Allan
- 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 ...
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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 interpretation of such rights must be duly sensitive to the legitimate demands of the collective welfare, and reasonable governmental determination of the public interest, their requirements should normally be ascertained by independent judges, appropriately detached both from immediate administrative pressures and prevailing public opinion on any particular issue. It is sometimes alleged, however, that certain matters are inherently unsuited to adjudication, either because judicial determination would usurp the proper democratic process, or because judicial qualifications or adversarial legal procedures are inadequate or inappropriate to the task. This chapter discusses political questions and the limits of justiciability, constitutional convention and political principle, and adversarial adjudication and the merits of ‘judicial restraint’.Less
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 interpretation of such rights must be duly sensitive to the legitimate demands of the collective welfare, and reasonable governmental determination of the public interest, their requirements should normally be ascertained by independent judges, appropriately detached both from immediate administrative pressures and prevailing public opinion on any particular issue. It is sometimes alleged, however, that certain matters are inherently unsuited to adjudication, either because judicial determination would usurp the proper democratic process, or because judicial qualifications or adversarial legal procedures are inadequate or inappropriate to the task. This chapter discusses political questions and the limits of justiciability, constitutional convention and political principle, and adversarial adjudication and the merits of ‘judicial restraint’.
Jack M. Balkin
- 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 ...
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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 party tends to control the federal courts. The parties’ positions are mirror images. Over the course of a regime the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.Less
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 party tends to control the federal courts. The parties’ positions are mirror images. Over the course of a regime the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.
Gus Van Harten
- 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 ...
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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 was carried out through a systematic study of, firstly, the types and areas of decision-making reviewed by the arbitrators, and, secondly, whether and how the arbitrators drew on approaches used commonly by courts to orient judicial review and, in some cases, show restraint. The chapter then discusses institutional rationales for judicial restraint; presents a theoretical overview of the arbitrators’ role; and summarizes the findings from the present study.Less
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 was carried out through a systematic study of, firstly, the types and areas of decision-making reviewed by the arbitrators, and, secondly, whether and how the arbitrators drew on approaches used commonly by courts to orient judicial review and, in some cases, show restraint. The chapter then discusses institutional rationales for judicial restraint; presents a theoretical overview of the arbitrators’ role; and summarizes the findings from the present study.
J. W. F. Allison
- 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 ...
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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 separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.Less
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 separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.
Stephen Cretney
- 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 ...
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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 practising barrister and then, for nearly twenty years, as a High Court judge, but also made what has rightly been described as an ‘immeasurable’ contribution to the law as scholar, teacher, and author. Megarry was born in Croydon, the elder son of Robert Lindsay Megarry and Irene Clark. He entered Trinity Hall at Cambridge University in 1929. It was A. L. Goodhart, editor of the prestigious Law Quarterly Review since 1926 and latterly Professor of Jurisprudence at Oxford, who had been one of those who encouraged Megarry to seek call to the Bar. Writing and teaching were among the traditional ways in which newly called barristers supplemented earnings from meagre practices, and Megarry was exceptionally well qualified for both these activities. His attitude of judicial restraint is now often regarded as dated.Less
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 practising barrister and then, for nearly twenty years, as a High Court judge, but also made what has rightly been described as an ‘immeasurable’ contribution to the law as scholar, teacher, and author. Megarry was born in Croydon, the elder son of Robert Lindsay Megarry and Irene Clark. He entered Trinity Hall at Cambridge University in 1929. It was A. L. Goodhart, editor of the prestigious Law Quarterly Review since 1926 and latterly Professor of Jurisprudence at Oxford, who had been one of those who encouraged Megarry to seek call to the Bar. Writing and teaching were among the traditional ways in which newly called barristers supplemented earnings from meagre practices, and Megarry was exceptionally well qualified for both these activities. His attitude of judicial restraint is now often regarded as dated.
Mark A. Graber
- 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 ...
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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 local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.Less
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 local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.
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 ...
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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 with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while creating its own brand of conservative judicial activism. Ranging from 1937 to the present, this book traces the legal and political forces that have shaped the modern Court. The book argues that the tensions within modern conservatism have produced a court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights, presidential elections, and much more. The book focuses in particular on the role of Justices O'Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court.Less
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 with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while creating its own brand of conservative judicial activism. Ranging from 1937 to the present, this book traces the legal and political forces that have shaped the modern Court. The book argues that the tensions within modern conservatism have produced a court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights, presidential elections, and much more. The book focuses in particular on the role of Justices O'Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court.