Virginia Law Review最新文献_第8页

The Constitutional Journey of Marbury v. Madison 马布里诉麦迪逊案的宪法历程

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-06-03 DOI: 10.2139/SSRN.412641

G. White

{"title":"The Constitutional Journey of Marbury v. Madison","authors":"G. White","doi":"10.2139/SSRN.412641","DOIUrl":"https://doi.org/10.2139/SSRN.412641","url":null,"abstract":"Although Marbury v. Madison is viewed as foundational to the American constitutional enterprise, there have been widely differing views as to what foundational principle Marbury embodies. Some commentators have identified Marbury with the \"judicial veto\" principle, under which anyone disappointed by a law promulgated by the executive of legislature is entitled to a judicial determination of the constitutionality of that law. Others have suggested that the current Supreme Court believes that Marbury and its progeny mean that in most cases, there is no room even for constitutional interpretation by other branches of government: legislative and executive acts have no constitutional status until the judiciary passes on them. Still others treat Marbury as standing for the far more limited proposition that judicial review only permits courts to engage in constitutional interpretation within a limited sphere of \"cases and controversies\" in which they are authorized to do so, and outside that sphere there is a vast realm where constitutional issues are delegated to the political branches. This article sketches successive understandings of Marbury since it was handed down, and attempts to show how those understandings have been affected by changing views of the relationship of the judiciary to other branch actors in the American constitutional order. It argues that successive understandings of Marbury have not pivoted on the legitimacy of \"judicial supremacy,\" as that term has been conventionally understood. They have pivoted, instead, on the scope of judicial supremacy: on the extent to which the Court has tacitly allowed other branches to carve out some space for their own constitutional interpretations. My interpretation of the \"constitutional journey\" of Marbury requires \"judicial review,\" in American constitutional jurisprudence, to be seen as a composite of two foundational principles. One is the principle that in \"cases or controversies\" involving interpretations of the Constitution of the United States, the judiciary is the \"ultimate expositor.\" That principle amounts to judicial supremacy, and was understood as such by early commentators on Marbury. The other is the principle that the range of \"cases and controversies\" requiring judicial interpretation of the Constitution is comparatively narrow, and outside that range there is a wide scope for activity by other branch actors that amounts to constitutional interpretation. This principle, which I call \"departmental discretion,\" assumes that although the judiciary has the power to review implicit constitutional judgments by other actors, that power includes the freedom to decline to do so. Although my interpretation might seem intuitively obvious to persons familiar with American constitutional jurisprudence, it does not seem easily reconcilable with current commentary that suggests that \"judicial review\" has always, and should be, grounded in \"popular constitutionalism.\" I explore that conflict in","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"2022 1","pages":"1463"},"PeriodicalIF":2.6,"publicationDate":"2003-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68702380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 13

Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia 洗牌：重新划分选区以促进弗吉尼亚州的优质教育

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-06-01 DOI: 10.2307/3202376

Angela A. Ciolfi

引用次数: 2

Jury Sentencing as Democratic Practice 陪审团量刑作为民主实践

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-04-24 DOI: 10.2307/3202435

J. I. Turner

{"title":"Jury Sentencing as Democratic Practice","authors":"J. I. Turner","doi":"10.2307/3202435","DOIUrl":"https://doi.org/10.2307/3202435","url":null,"abstract":"After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to leave the sentencing decision with a deliberative democratic institution - the jury. This Article makes the case for jury sentencing from three perspectives: the historical, the theoretical, and the practical. Part I of this Article surveys the history of jury sentencing from colonial times to the present. This history reveals that jury sentencing - a uniquely American innovation - was a valued democratic institution in the early republic, but was gradually abandoned in the twentieth century as scientific approaches to punishment came into favor. The most recent developments from the Supreme Court suggest, however, that jury sentencing may be on the rise again. Part II enlists the insights of modern political theory, and particularly, the ideas of deliberative democratic theory, to show that the movement away from jury sentencing has not been entirely healthy for either the sentencing process or our democracy as a whole. Part III addresses the practical objections that have been leveled against jury sentencing, and suggests that the vast majority of these are either exaggerated or equally present in alternative sentencing regimes. The jury, therefore, emerges as an equally competent, yet more legitimate sentencing institution. Finally, Part IV outlines the actual contours of a possible jury sentencing regime that balances the democratic virtues of jury involvement with efficiency, uniformity, and other values important to the sentencing process.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"89 1","pages":"311"},"PeriodicalIF":2.6,"publicationDate":"2003-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202435","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 23

Sprawl and the New Urbanist Solution 蔓延与新的城市主义解决方案

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-04-01 DOI: 10.2307/3202437

J. Meredith

引用次数: 28

States as Nations: Dignity in Cross-Doctrinal Perspective 作为国家的国家:跨教义视角下的尊严

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-03-01 DOI: 10.2307/3202386

Peter Smith

{"title":"States as Nations: Dignity in Cross-Doctrinal Perspective","authors":"Peter Smith","doi":"10.2307/3202386","DOIUrl":"https://doi.org/10.2307/3202386","url":null,"abstract":"In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the \"dignity\" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's anti-federalist majority has invoked background principles of customary international law to justify the expansive immunity it has accorded to the states. In applying the law of nations, courts have refused, absent a clear statement from Congress, to entertain private suits against foreign sovereign states. In so doing, the courts have relied on the \"equal dignity\" of sovereign nations. In its recent state sovereign immunity decisions, the Court has imported this notion of sovereign dignity from the doctrine of foreign state sovereign immunity. This \"doctrinal bridge\" is notable for two principal reasons. First, the Court's invocation of the law of nations implicitly suggests that the several states stand in relation to the United States much as do fully sovereign nations. In so suggesting, the Court has found yet another instrument with which to wage the battle over the appropriate role of the states in our federal system. Second, even assuming that it is appropriate to analogize states to foreign nations for purposes of sovereign immunity, the doctrinal consequences of the analogy would be that Congress has authority to abrogate the states' immunity from suit, just as it enjoys such authority with respect to foreign nations. Yet the Court has refused to take the bitter with the sweet; under current doctrine, congressional power to abrogate the states' sovereign immunity is the exception, not the rule. In effect, the Court has treated the several states as more sovereign than fully sovereign nations. This is an unstable place for the doctrine to rest.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"10 1","pages":"1"},"PeriodicalIF":2.6,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202386","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 6

Felon Disenfranchisement: The Unconscionable Social Contract Breached Felon剥夺选举权：被违背的无意识社会契约

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-03-01 DOI: 10.2307/3202387

Afi S. Johnson-Parris

引用次数: 22

Online, Not on Grounds: Protecting Student Internet Speech 在线，而非理由:保护学生网络言论

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-03-01 DOI: 10.2307/3202388

Alexander G. Tuneski

引用次数: 2

America the Adversarial 美国是对手

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2003-03-01 DOI: 10.2307/3202389

F. Cross, R. Kagan

引用次数: 4

Structured Settlements as Structures of Rights 作为权利结构的结构化住区

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1074013

Henry E. Smith

{"title":"Structured Settlements as Structures of Rights","authors":"Henry E. Smith","doi":"10.2307/1074013","DOIUrl":"https://doi.org/10.2307/1074013","url":null,"abstract":"E are all used to thinking about law in terms of the primary rights and duties that obtain in the world at large. One has a right against everyone else not to be punched in the nose or to be run over by a negligent driver. Once these primary rights are violated, a second set of rights and duties can arise out of a judgment or settlement. The victim now has a right to compensation from the tortfeasor. It is tempting to think that there is nothing interesting left to say. A judgment or settlement paid by the tortfeasor to the victim will compensate the victim according to the size of the damages in present value terms and will deter potential tortfeasors in the same proportion. Whether a settlement is paid in a lump sum or periodically should not matter because it is the amount paid that impacts the goals of tort law. This picture is, as Professor Ellen Pryor's Article in this Symposium ably demonstrates, far from adequate.1 How settlements are structured does impact the goals of deterrence and compensation, and lump-sum or \"stretched-out\" settlements are not equivalent for all purposes, even if they are equal in present value terms. In a lump-sum damage award, the defendant pays the damages to the plaintiff all at once, usually some time shortly after the settlement or judgment. In the three stretched-out methods of damage payout-structured settlements, settlement trusts, and periodic payments mandated by statute-the plaintiff does not receive all of the money up front, but rather in multiple payments over some period of time (measured by a fixed number of years, or the plaintiff's life, or some combination thereof). The stretching out of the payments is meant to constrain plaintiff decisionmaking over consumption of the damage award and so involves adding higher-order decisions that constrain plaintiff's consumption decisions. All of these methods involve the plaintiff and others constraining the decisions of","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1953"},"PeriodicalIF":2.6,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1074013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

The Tragedy of the Asbestos Commons 石棉公地的悲剧

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1074008

Francis E. McGovern

引用次数: 5