Open AccessJournal Article
Jurisdiction-Stripping Reconsidered
TLDR
Boumediene and Boumediene as discussed by the authors discussed the role of text-based originalism in the decision of the United States Supreme Court to withdraw federal district court and Supreme Court JurisDiction.Abstract:
INTRODUCTION................................................................................. 1044 I. BOUMEDIENE AND ITS METHODOLOGY: WHAT CONSTITUTIONAL THEORY HAS TO DO WITH JURISDICTION-STRIPPING............................................................ 1053 A. The Opinion ....................................................................... 1053 B. Boumediene’s Potential Methodological Significance ........................................................................ 1056 II. ALLOCATION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS........................................................................ 1063 A. Withdrawal of Both Federal District Court and Supreme Court Jurisdiction .............................................. 1065 1. The Traditional View................................................... 1065 2. Professor Amar’s Neo-Federalist Rejoinder ............. 1069 3. Deciding in the Face of Historical Uncertainty ......... 1072 4. Supplementing Text-Based Originalism: Congressional Motives Reconsidered........................ 1074 5. Beyond Motive: Broader Limitations on the Total Stripping of Federal Jurisdiction................................ 1083 B. Withdrawal of Supreme Court Jurisdiction .................... 1087 1. Background Principles ................................................ 1087 2. Jurisdiction-Stripping and Supervisory Powers........ 1089 C. Stripping of District Court Jurisdiction ........................... 1093 III. WITHDRAWAL OF ALL JUDICIAL JURISDICTION .................... 1095 A. Sources of Limits on Congressional Power .................... 1098 B. Remedies and “the Battaglia Principle”.......................... 1101 1. Battaglia v. General Motors Corp. ............................ 1102 2. What Battaglia Forbids and Permits.......................... 1102 C. Constitutionally Necessary Remedies .............................. 1104read more
Citations
More filters
Journal ArticleDOI
An American Notwithstanding Clause? Between Potestas and Potentia
TL;DR: In another sense, however, this is not an accepted practice in the legal community, as a matter of Hobbesian potestas but not of Spinozist potentia as discussed by the authors, and it is, therefore, conceivable that additional codification of the existing American override capacity can strengthen the effective sovereignty of the American people in relation to the courts.
Posted Content
Democratizing the Supreme Court
Ryan D. Doerfler,Samuel Moyn +1 more
TL;DR: In this article, the authors argue that personnel reforms are mostly addressed to the legitimacy frame of the issue, which treats the problem with the Supreme Court as one of politicization, in favor of an openly progressive frame in which the question is how to enable democracy within our constitutional scheme.
Posted Content
A Faction of One: Revisiting Madison's Notes on the Constitutional Convention
TL;DR: Bilder as mentioned in this paper argues that even a dramatic shift in their interpretation will not disturb the evolution of judicial doctrine applying the text written in 1787, and that the constitutional practice in the Supreme Court and among elite lawyers is so divorced from the Notes that even an interpretation of their interpretation would not disturb their evolution.
Journal ArticleDOI
Explaining Congressional Grants of Jurisdiction to the Federal District Courts
TL;DR: In this article, the conditions under which Congress passes jurisdiction-granting legislation, which expands the discretion of the federal district courts by designating them as policy venues, were examined.