FEDERAL COURTS OUTLINE - NYU School of Law联邦法院轮廓的纽约大学法学院.doc

FEDERAL COURTS OUTLINE I. INTRODUCTION Legal Process School = Hart Wechsler’s methodology. Asks who does and ought to make legal decisions taking into account three factors: Federalism = What is the role of federal courts in the states? Separation of powers = What is the relationship of the federal courts to the executive and legislative branches? Institutional competence = Which institution is best equipped to make decisions? Allocational approach = Legal process scholars focus on the soundness of process in constitutional decision-making. Theories of democracy and majoritarianism underlie this approach. Criticisms = Several other schools of thought began to emerge and challenge the premises on which legal process thinking rested. Neutrality undesirable = With a focus on process, legal process scholars were of the view that all legal thinking should be neutral. Scholars began to criticize this “insidious desire to remain unimpassioned…” Brown v. Board of Education = Legal process thinking never came to terms with the Court’s decision in Brown, which challenged each of the three legal process factors: Court would not defer to state sovereignty. Court weakened the distinction between the federal and state systems. Court would help those who weren’t being protected by the political process. Fundamentalist approach = Decision-making today looks nothing like legal process thinking. The Court looks to the text of the Constitution, policy, and tradition to make an argument about the best interpretation of the Constitution. Other approaches = Alternative approaches replace process with substantive theories, efficiency, and anti-subordination principles: Law economics Critical legal studies Nonetheless, the Hart Wechsler approach still has some power in federal courts, especially the Supreme Court. History of the Federal Courts Articles of Confederation = There was no independent federal judiciary. Congress itself had adjudicative authority. But everyone recogni