Dear Robin,
This seems
to me almost exactly right.
Best,
Louise
At 11:24 AM 10/30/03, you wrote:
[EMAIL PROTECTED] 10/30/03
11:58AM
The more general question is whether (and why) Lochner was
not
formally overruled.
If memory serves (I don't have the decisions in front of me), isn't
it
so that
Sorry, in going to delete the below message I noticed that
when I had typed unrealistic it came out
realistic and thus made gibberish of what I was saying.
It is very nice of y'all not to have tried to explain the realities to
me. The moral is, reread emails before hitting the send
button.
Dear Keith,
Yes, this
was my understanding of Marshall's view, that he favored such a
colonization scheme. It was somewhat less realistic in Marshall's
day than in Lincoln's ~ but Lincoln had a similar view. I did not
connect this with Bobby's phrase, private emancipation, but
of course I should
Dear Bobby,
I had
never heard this about Marshall, but private emancipation was constantly
attempted. Families often lived closely with their domestic slaves,
and not everybody was as cold-hearted as Jefferson. Men often
became fond of their illegitimate slave children, and tried to emancipate
lifted a finger to implement it; he did, however
wield a mighty pen and command a mighty army for direct emancipation
without colonization.
paul finkelman
Louise Weinberg wrote:
Dear Keith,
Yes, this
was my understanding of Marshall's view, that he favored such a
colonization scheme. It was somewhat
Aug. 26, 2003
Dear David,
I don't
know the answer to your question, but if a securities case arose by way
of counterclaim in a state-law case just after James Beam, I can't
imagine that the Supreme Court would limit to federal courts James Beam
its insistence on retroactivity. So counterclaims
August 24, 2003
To the list:
Please excuse my ignorance but I am hoping someone on the list can point
me in the right direction. I have three questions about judicial review in
the U.K.
First, I am aware that European law is now or was recently furnishing a
kind of super-law under
August 19, 2003
Dear Sandy,
The
Circuit Court in Washington, D.C. had jurisdiction ~ which had survived
the Repeal Act of 1802. Susan Bloch recently wrote a piece about
this. This court also had explicit mandamus power for cases against
federal officials, power the Supreme Court would go on to
Dear Sandy,
It is a
mystery. Bloch suggests that Marbury might well have been a
Federalist plot, and Marshall might well have been in on it.
Mission accomplished, further action would have been unnecessary.
Another line of argument notices that the state courts were open.
Shugerman has argued
Dear Matt,
I should
have added two points to my below message. First, Marshall came to
see that Congress had power to make some of the Court's original
jurisdiction concurrent, and explained the position in The Cohens v.
Virginia. Second, all of the understandings I have mentioned go to
the power
August 18, 2003
Dear Matt,
Thanks.
Of course you are right. But so am I. In your recollection of
Marshall's attempt to distinguish Marbury, I am sure you nevertheless do
see that what that part of The Cohens meant in the context of your
question was that the Court's original jurisdiction was
Dear Matt,
I should
respond to your further observation that the concurrent jurisdiction in
The Cohens was in the state courts. I would be
surprised if, on reflection, you would think that that somehow matters,
but if you do, why do you think so? Is it your position that
Section 13 contemplated
Dear Jack,
The point,
of course, is that if learned counsel offer these materials they will be
received with respect in our courts ~ but not as authority.
Considered, but not necessarily followed. Discretion,
not obligation. This discussion has not mentioned a third path
sometimes taken by
August 3, 2003
Dear Bobby,
[Self
promotion warning.] There is a 160-page magnum opus of mine on Marbury
(forthcoming Virginia Law Review, Oct. 2003). The article pretty much
demolishes (she said modestly) the conventional technical critique of
Marshall's statutory construction and the
Dear Francesco,
There are
instances in the Virginia and Pennsylvania ratification debates, in the
Constitutional Convention, and in the Federalist Papers. I reviewed
these materials in another connection for a forthcoming article on
Marbury. I can send you the draft of that section off list if
Dear Bill,
You are
right about this point. In modern terms, Marbury holds that if you read
the statute the way Marbury was suggesting (as a jurisdictional grant) it
would be constitutional. We might say the law was declared
unconstitutional as applied. ~ As applied to Marbury's case,
in its
Dear Stephen,
Your list
is excellent. On the doubtful case rule, of course there has been a
good deal of writing. But it seems odd to expend so much energy on
the doubtful case rule. Early courts were very hesitant about
striking down legislation, but if they were, it was not because a case
was
Dear Bob,
I disagree
with this some of the analysis you offer in your email below. You
urge the wisdom of at least considering foreign views. The
suggestion sounds progressive. Yet where Congress has spoken, and
the conduct in question is rationally within Congress's legitimate areas
of concern,
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