CUNY Law Professor Jenny Rivera has been nominated for a position on the New York Court of Appeals. In a hearing earlier this week, some of the questioning focused on her article, An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 Wash. L. Rev 897 (2007), the abstract of which includes […]
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The Conventional Wisdom Before Missouri v. Holland: Was It “Close To Universally Accepted” That a Treaty Could Increase The Legislative Powers of Congress?
I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland […]
What If Lower Court Judges Weren’t Bound by Supreme Court Precedent?
Last week’s post, What Should Conservative Lower Court Judges Do With Liberal Supreme Court Precedents?, drew some interesting comments. I wanted to respond to one common argument: Lower court judges take an oath to defend and are bound by the Constitution, not the Supreme Court’s erroneous version of the Constitution. As a result, the argument […]