scholarly journals The Gifted Judge: An Analysis of the Judicial Career of Robert H. Jackson

1969 ◽  
pp. 880
Author(s):  
Graeme A. Barry
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Separation Of Powers ◽  
Civil Liberties ◽  
Historical Analysis ◽  
The United States ◽  
Economic Regulation ◽  
International Criminal Tribunals ◽  
Procedural Due Process ◽  
Nuremberg Trials

The author undertakes an historical analysis of the judicial achievements of Robert H. Jackson, Associate Justice of the United States Supreme Court from 1941 until his sudden death in 1954. Justice Jackson's approach to the nature of the judicial function, to judicial review and to the question of extrajudicial activities sheds light on contemporary debate in these areas. Despite being undoubtedly influenced by his place on the "Roosevelt Court," Jackson was a strong individualist, which the author believes accounts for his "maverick" status on the Court Justice Jackson's prominent judicial opinions relating to economic regulation, procedural due process, civil liberties and the separation of powers doctrine reveal how he addressed the inherent tension between judicial review and democracy in the American system of government. The effects of extrajudicial activities are explored with reference to his key role at the Nuremberg Trials, and the appointment of Madam Justice Louise Arbour to serve as Prosecutor for the International Criminal Tribunals.

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

Introduction The Birth and Growth of Judicial Review: 1607–2020

2021 ◽  
pp. 1-14
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Charismatic Leadership ◽  
The United States ◽  
Boundary Line ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Checks And Balances ◽  
The Third

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 6 Methodology in State Constitutional Rights Interpretation

2009 ◽  
Author(s):  
Williams Robert F
Keyword(s):  
United States ◽  
Due Process ◽  
The United States ◽  
State Court ◽  
Economic Regulation ◽  
Constitutional Rights ◽  
United States Supreme ◽  
State Constitutions ◽  
Federal Constitutional ◽  
14Th Amendment

This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.

Rights in Twentieth-Century Constitutions: The Case of Welfare Rights

1994 ◽  
Vol 6 (1) ◽  
pp. 140-156
Author(s):  
Mary Ann Glendon
Keyword(s):  
Due Process ◽  
The United States ◽  
Constitutional Rights ◽  
Economic Rights ◽  
Welfare Rights ◽  
Government Grants ◽  
Procedural Due Process ◽  
Constitutional Right ◽  
1960S And 1970S ◽  
The 1960S

In the 1960s and 1970s, when the judicial rights revolution was in full swing in the United States, poverty lawyers and allied legal scholars urged the courts to add to the expanding catalog of constitutional rights certain social and economic rights—to housing, education, and a minimum decent subsistence. The advocates of welfare rights were not deterred by the absence of pertinent constitutional language. After all, if the Court could find a right to privacy in the “penumbra” of the Bill of Rights, who knew what else might be discovered there? Those efforts to constitutionalize what were historically matters of legislative discretion had only partial success. The Supreme Court did hold that, once government grants certain statutory entitlements such as welfare and disability benefits, the recipients have a constitutional right not to be deprived of those benefits without procedural due process. The Court declined, however, to find that the entitlements themselves were constitutionally required.

scholarly journals Texas Advance Directives Act: Nearly a Model Dispute Resolution Mechanism for Intractable Medical Futility Conflicts

2016 ◽  
Vol 16 (1) ◽  
pp. 22 ◽  
Author(s):  
Thaddeus Mason Pope
Keyword(s):  
Dispute Resolution ◽  
Advance Directives ◽  
Due Process ◽  
Medical Futility ◽  
The United States ◽  
Life And Death ◽  
Procedural Due Process ◽  
The World ◽  
Dispute Resolution Mechanism ◽  
Texas Advance Directives Act

<em>Increasingly, clinicians and commentators have been calling for the establishment of special adjudicatory dispute resolution mechanisms to resolve intractable medical futility disputes. As a leading model to follow, policymakers both around the United States and around the world have been looking to the conflict resolution provisions in the 1999 Texas Advance Directives Act (‘TADA’). In this article, I provide a complete and thorough review of the purpose, history, and operation of TADA. I conclude that TADA is a commendable attempt to balance the competing goals of efficiency and fairness in the resolution of these time-sensitive life-and-death conflicts. But TADA is too lopsided. It is far more efficient than it is fair. TADA should be amended to better comport with fundamental notions of procedural due process.</em>

scholarly journals The Problem with Forgiving (But Not Entirely Forgetting) the Crimes of Our Nation’s Youth: Exploring the Third Circuit’s Unconstitutional Use of Nonjury Juvenile Adjudication in Armed Career Criminal Sentencing

2005 ◽  
Vol 66 (4) ◽  
Author(s):  
Stephen F. Donahue
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
The United States ◽  
Past Century ◽  
Criminal Proceedings ◽  
Social Compact ◽  
Procedural Due Process ◽  
Due Process Of Law ◽  
Lower Courts ◽  
The Individual

For better or for worse, our Constitution ensures that the basic rights of fair procedure are guaranteed to all American citizens, including those accused of crime, no matter how much society may disapprove of their actions. The United States Supreme Court has expressly provided that “[d]ue process of law is the primary and indispensable foundation of individual freedom” and effectively serves as the “basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.” Recognizing that the failure to observe fundamental procedural due process guarantees has historically resulted in substantial unfairness to criminal defendants, the Court has worked to establish heightened procedural safeguards in criminal proceedings over the latter half of the past century.6 In this sense, the Court has openly embraced the belief that “the progression of history, and especially the deepening realization of the substance and procedures that justice and the demands of human dignity require” has called for courts to “invest the command of ‘due process of law’ with increasingly greater substance.” Consequently, the Supreme Court has set a clear example that lower courts must move forward “with advancing the conception of human rights in according procedural as well as substantive rights to individuals accused of conflict with the criminal laws.”

More than a Wall: The Rise and Fall of US Asylum and Refugee Policy

2020 ◽  
pp. 231150242094884
Author(s):  
Ruth Ellen Wasem
Keyword(s):  
Public Opinion ◽  
Due Process ◽  
Public Support ◽  
Historical Analysis ◽  
The United States ◽  
Refugee Policy ◽  
Political Struggle ◽  
Historical Sources ◽  
Legal Principles ◽  
Flexible System

This article uses a multidisciplinary approach — analyzing historical sources, refugee and asylum admissions data, legislative provisions, and public opinion data — to track the rise and fall of the US asylum and refugee policy. It shows that there has always been a political struggle between people who advocate for a generous refugee and asylum system and those who oppose it. Today, the flexible system of protecting refugees and asylees, established in 1980, is giving way to policies that weaponize them. It offers a historical analysis of US refugee and asylum policies, as well as xenophobic and nativist attitudes toward refugees. It places Trump administration refugee policies in three categories: those that abandon longstanding US legal principles and policies, most notably non-refoulement and due process; those that block the entry of refugees and asylees; and those that criminalize foreign nationals who attempt to seek asylum in the United States. The article concludes with an analysis of public opinion research to square the growing public support for refugees and asylees shown in polling data with the subgroup popularity of Donald Trump’s harsh xenophobic rhetoric and policies. These seemingly contradictory trends are consistent with research on right-wing populism. It argues that the restoration of generous humanitarian policies requires robust civic engagement and steadfast legislative efforts.

The United States: Creation, Reconstruction, the Progressives, and the Modern Era

2021 ◽  
pp. 97-182
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
State Legislatures ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
American People ◽  
State Governments ◽  
State Laws

This chapter focuses on the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States. American judicial review emerged from the vertical federalism umpiring of the King-in-Council, which reined in errant colonies; and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. American judicial review took its present form of allowing horizontal separation of powers and enumerated powers vertical judicial review during the critical years between 1776 and 1803 when the faith of the American people shifted away from state legislatures and state governments and toward stronger executives and courts and a much stronger national government. This theory is set forth correctly by Professor Gordon S. Wood in both articles he has shared with me and in conversation. The addition of the three Reconstruction Amendments, and the enormous statutory expansions of federal court jurisdiction and of the number of lower federal court judges after the Civil War, occurred for rights from wrongs reasons. They led, after the incorporation of the Bill of Rights against the states between 1940 and 1970, to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-in-Council used to rein in errant colonial legislatures.

Constitutionalism and the Westminster Model

2020 ◽  
pp. 189-205
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Due Process ◽  
Separation Of Powers ◽  
Attorney General ◽  
Judicial Independence ◽  
Critical Issue ◽  
Standard Work ◽  
Westminster Model ◽  
The United Kingdom ◽  
Procedural Due Process ◽  
Solicitor General

This chapter evaluates the constitutional framework of the United Kingdom, revealing a disturbing new settlement of State power. In particular, it hones in on the ‘Westminster Model’ of government which advertises a strict separation of powers supposedly insulating judges from direct executive influence. An altogether different reality emanating from the archival trove of intergovernmental files is found; one which challenges the grundnorm of judicial independence embedded within the Westminster model of governance. Although Executive dominance of the judiciary runs contrary to basic texts and beliefs, this chapter lays out an alternative perspective which implicates the senior judiciary in subterranean policymaking that has led to the steady erosion of procedural due process. It examines where the Civil Service fits into this picture, and draws attention to its servants’ inherent shortcomings as ‘bureaucrats of the law’ having assumed responsibility in large part for the body of sub-standard work distributed under the misnomer: ‘Judges’’ Rules. It explains how, on the critical issue of an individual’s vulnerability when confronted by police power, civil servants, tasked with furthering the ‘public interest’, were far more adept at bolstering ‘police interests’, with backing from the then Head of the Judiciary (Lord Chancellor) and his Law Officers (the Attorney-General and Solicitor-General). By documenting key historical events that impacted upon the criminally suspected or accused, awareness of which has been muted or unknown, this Chapter explains how the doctrine of the Separation of Powers is contravened and the principle of judicial independence muddied to the point of non-recognition.

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