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Journal ArticleDOI

Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis

01 Nov 1975-University of Pennsylvania Law Review (University of Pennsylvania Law School)-Vol. 124, Iss: 1, pp 45

AboutThis article is published in University of Pennsylvania Law Review.The article was published on 1975-11-01 and is currently open access. It has received 8 citation(s) till now. The article focuses on the topic(s): Original jurisdiction & Jurisdiction.

Topics: Original jurisdiction (72%), Jurisdiction (71%), Intervention (law) (66%) more

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Journal ArticleDOI
Abstract: The potentially undemocratic nature of the federal courts has longed flamed the fires of the debate regarding the proper role of the judiciary in American politics. Extant scholarship concerning the influence of public opinion on judicial decision making focuses almost myopically on the U.S. Supreme Court, neglecting other significant judicial actors. We explore the extent to which the federal courts act as countermajoritarian institutions by investigating the impact of public preferences on decision making in the U.S. Courts of Appeals. Using data from 1961-2002, we examine whether the courts of appeals are influenced by public mood, both indirectly through the federal judicial selection process and directly via responsiveness to changes in circuit and national mood. Our results indicate that public opinion affects courts of appeals decision making indirectly by way of judicial replacements, but we fail to uncover evidence that courts of appeals judges respond directly to changes in public opinion at either the regional or national levels. We conclude that, absent membership turnover, the courts of appeals are not responsive to the will of the public.

16 citations

12 Nov 2020
Abstract: In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.

15 citations

Journal ArticleDOI
Abstract: This Article provides a new interpretation of the origins of three central obsessions of federal-courts and constitutional-law scholarship: the question whether lower federal courts are constitutionally required; the relative powers of Congress, the Supreme Court, and the lower federal courts to define federal jurisdiction; and judicial supremacy. The Article argues that the extension of federal judicial power to the lower federal courts was a crucial element of the Federalists’ project of building national supremacy into the Republic’s structure. Chief Justice John Marshall, like many other federalist theorists who were affiliated with the Federalist Party, viewed the lower federal courts as essential to the establishment of a union in which national supremacy was instantiated through judicial structure. Marshall and his fellow federalists/Federalists shared a substantive commitment to structure – namely, a judiciary-centric federalism. In the early nineteenth century, most notably in two cases involving the Second Bank of the United States – Bank of the United States v. Deveaux (1809) and Osborn v. Bank of the United States (1824) – the Marshall Court carried out through case law what the political branches had been unable to do following the election of 1800: grant the lower federal courts the power to hear all cases arising under federal law. Judge-made doctrines therefore operated as a substitute for a legislative grant of jurisdiction, and federal courts throughout the period opposed Congress’s attempts to claim ultimate authority over federal jurisdiction. The traditional story of the Marshall Court’s nationalism has overlooked both this link between law and politics and the importance of the lower federal courts to early republican beliefs about federal structure.

11 citations

Book ChapterDOI
01 Jan 2016
Abstract: The international influence of American (or U.S. American) constitutionalism is indisputable. The innovative framework set by the Founding Fathers back in 1787 and the resilient organizations developed thereupon had such a positive impact overseas that they were still the leading global reference 200 years after the Philadelphia Convention. Institutions such as judicial review, federalism, or even presidentialism disseminated alongside American military sway across the most varied settings and soon became unavoidable elements to consider in state-building efforts worldwide. Be it in post-colonial Latin America throughout the nineteenth century, Asia and Western Europe in the aftermath of World War II, or the emerging African nations during the second half of the twentieth century; the United States of America was for a much extended period of time the dominant prototype of a successful constitutional arrangement. Though this once hegemonic influence has somewhat lost momentum within the past couple of decades, American legal institutions enjoy to this day remarkable prestige and continue to impact significantly other systems around the globe. American courts, for instance, are still often referred to as “the most powerful and admired judiciary in the world.” Not only do they still reach more international headlines than any of their colleagues overseas, but also, as cases brought before them continue to drive many aspects of the contemporary legal debate, American judicial decisions are followed closely by foreign legal academia. So, while the new “world favorite” of democratic constitutionalism—the Federal Republic of Germany—is still relatively young and in significant ways a result of its American counterpart, the legal system of the United States is of such tradition and status that even today it takes a great share of the attention from scholars and practitioners around the globe.

9 citations

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THE EXISTING THEORIES.............................................. 52 A. The Madisonian Compromise................................... 52 B. Theories Based on the Language of Article III......... 56 1. Justice Story and `` Shall Be Vested ''............... 56 2. Professor Goebel and `` Ordain and Establish '' 59 C. Professor Hart 's `` Dialogue ''.....................................