The Will of the People? Pollsters, Elites, and Other Difficulties
William E. Forbath · September 2010 78 GEO. WASH. L. REV. 1191 (2010) Barry Friedman has written a wonderful book. Brilliant in its narrative detail, The Will of the People ranks among the best one-volume histories of the Supreme Court in United States politics. It recounts two centuries of a complex saga in a way... Read More
The Dialogic Theory of Judicial Review: A New Social Science Research Agenda
Jenna Bednar · September 2010 78 GEO. WASH. L. REV. 1178 (2010) For an institution designed to resolve disagreement, the United States Supreme Court is remarkably good at stirring the pot. Some look to the Court as the rampart that makes democracy’s airy construction possible; it is the essential resistance to majoritarian policy turned oppressive,... Read More
A Tale of Two Paradigms: Judicial Review and Judicial Duty
Philip Hamburger · September 2010 78 GEO. WASH. L. REV. 1162 (2010) What is the role of judges in holding government acts unconstitutional? The conventional paradigm is “judicial review.” From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that... Read More
The Lost Origins of American Judicial Review
G. Edward White · September 2010 78 GEO. WASH. L. REV. 1145 (2010) Philip Hamburger’s Law and Judicial Duty is a considerable achievement. This Essay later undertakes some criticism of it, but this should be understood as engagement with a provocative and substantial piece of work. Hamburger’s research in American archives has been dogged and... Read More
Expounding the Law
Mary Sarah Bilder · September 2010 78 GEO. WASH. L. REV. 1129 (2010) Written as a comment on Philip Hamburger’s book Law and Judicial Duty, this Essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant... Read More
The Historical Ordinariness of Judicial Review
Ann Althouse · September 2010 78 GEO. WASH. L. REV. 1123 (2010) The delightful thing about Philip Hamburger’s Law and Judicial Duty is the acting out—in 600-plus pages—of the surprise that is ordinariness. We may think that it’s exciting to picture the heroic judge, Chief Justice John Marshall, creating judicial review in Marbury v. Madison.... Read More
Avoiding the Chill: A Proposal to Impose the Avoidance Canon on the FCC
Mark Taticchi · July 2010 78 GEO. WASH. L. REV. 1102 (2010) Imagine a local television station (W-UHOH), covering a minor league baseball game. The visiting team—the Blue Sox—has lost twenty-three straight games against the home team—the Yonkers—but is currently winning by four runs in the bottom of the ninth. After the final batter grounds... Read More
Deference to Presidential Signing Statements in Administrative Law
Paul T. Stepnowsky · July 2010 78 GEO. WASH. L. REV. 1086 (2010) After President Obama questioned the use and frequency with which President Bush relied on signing statements to challenge the constitutionality or vagueness of statutes, he has continued this trend to further his own Administration’s policy objectives. Both Presidents have used signing statements... Read More
Union Shops, Not Border Stops: Updating NLRB Sanctions to Help Organize Immigrant Workers After Hoffman
Peter E. Shapiro · July 2010 78 GEO. WASH. L. REV. 1069 (2010) In Hoffman Plastic Compounds, Inc. v. NLRB, the Supreme Court held that the National Labor Relations Board (“NLRB”) could not award backpay to unauthorized workers who were fired because of their union activity. At its core, Hoffman stands for a well-understood central... Read More
The Meaningful Vote Commission: Restraining Gerrymanders with a Federal Agency
Joseph A. Peters · July 2010 78 GEO. WASH. L. REV. 1051 (2010) Federalist No. 51 could provide some guidance as America heads into the 2010 redistricting cycle. The states will once again draw new maps for electing members of Congress and, without auxiliary precautions, the states will once again fail to control themselves, using... Read More