Is Cap-and-Trade Fair to the Poor? Shortsighted Households and the Timing of Consumption Taxes
Brian Galle & Manuel Utset · November 2010 79 GEO. WASH. L. REV. 33 (2010) Many forms of consumption tax, including recent proposals to impose a tax on the use of carbon, impose disproportionate burdens on the poor. Commentators who propose mitigating this impact with tax rebates for low-income families have overlooked the importance of... Read More
The Corporate Law Background of the Necessary and Proper Clause
Geoffrey P. Miller · November 2010 79 GEO. WASH. L. REV. 1 (2010) This Article investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early Federal periods bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these charters suggests... Read More
Setting the Supreme Court’s Agenda: Is There a Place for Certification?
Amanda L. Tyler · September 2010 78 GEO. WASH. L. REV. 1310 (2010) This Essay, drawn from remarks offered as part of a symposium on the Supreme Court, discusses the many complaints about the Supreme Court’s current certiorari practices and one recent proposal that would alter those practices. Professors Paul Carrington and Roger Cramton, like... Read More
Incentives and the Supreme Court
Mark Tushnet · September 2010 78 GEO. WASH. L. REV. 1300 (2010) Good-government reform proposals like those offered by Professors Craig Lerner and Nelson Lund generally confront several difficulties. Details matter, but most reform proposals are understandably sketchy. The details ordinarily would be fleshed out as the proposal works its way through the process of... Read More
Judicial Duty and the Supreme Court’s Cult of Celebrity
Craig S. Lerner & Nelson Lund · September 2010 78 GEO. WASH. L. REV. 1255(2010) Judging from recent confirmation hearings, there is now a consensus that Supreme Court Justices should be humble servants of the law, highly respectful toward precedent, and without personal agendas of any kind. Few informed observers expect this to happen. After... Read More
The Will of the People and the Process of Constitutional Change
Barry Friedman · September 2010 78 GEO. WASH. L. REV. 1232 (2010) This is a Reply for a symposium by The George Washington Law Review regarding “The Will of the People: How Public Opinion Influences the Supreme Court and Shapes the Meaning of the Constitution.” It takes up the question of constitutional change, clarifying what... Read More
Public Consensus as Constitutional Authority
Richard Primus · September 2010 78 GEO. WASH. L. REV. 1207 (2010) Barry Friedman’s new book The Will of the People attempts to dissolve constitutional law’s countermajoritarian difficulty by showing that, in practice, the Supreme Court does only what the public will tolerate. His account succeeds if “the countermajoritarian difficulty” refers to the threat that... Read More
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