Issue 3 – April 2018 What Are The Judiciary’s Politics?

What Are The Judiciary’s Politics?

Essay by: Michael W. McConnell 45 PEPP. L. REV. 455 (2018) What are the politics of the federal judiciary, to the extent that the federal judiciary has politics? Whose interests do federal judges represent? This Essay puts forward five different kinds of politics that characterize the federal judiciary. First, the federal judiciary represents the educated …

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Issue 3 – April 2018 The Pirate’s Code: Constitutional Conventions In U.S. Constitutional Law

The Pirate’s Code: Constitutional Conventions In U.S. Constitutional Law

Article By: Mark Tushnet 45 PEPP. L. REV. 481 (2018) A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. …

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Issue 3 – April 2018 How the Prohibition on “Under-Ruling” Distorts the Judicial Function (and What To Do About It)

How the Prohibition on “Under-Ruling” Distorts the Judicial Function (and What To Do About It)

Article by: A. Christopher Bryant and Kimberly Breedon 45 PEPP. L. REV. 505 (2018) Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. …

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Issue 3 – April 2018 Justice As Fair Division

Justice As Fair Division

Article by: Ian Bartrum, Kathryn Nyman, and Peter Otto 45 PEPP. L. REV. 531 2018 The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears …

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Issue 3 – April 2018 Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court

Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court

Comment by: Eric J. Segall 45 PEPP. L. REV. 547 (2018) Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice …

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Issue 3 – April 2018 Hearing the States

Hearing the States

Article by: Anthony Johnstone 45 PEPP. L. REV. 575 2018 The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections …

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