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Topic: Judicial Review

Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions

Ira P. Robbins | Article

Per curiam—literally translated from Latin to “by the court”—is defined by Black’s Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’s tenure, almost nine percent of the Court’s full opinions were per curiams. The prevalence [...]

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Advisory Adjudication

Girardeau A. Spann | Article

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court’s decision, therefore, has the paradoxical effect of both honoring [...]

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Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy Essay

Karl S. Coplan | Article
The classical rationale for judicial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century, however, American legal realists persuasively questioned the determinacy of law in general and posited that indeterminate cases were decided by judicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on different shared moral intuitions. At the same time, neurological research suggests that humans and primates implement “decisions” before the cognitive parts of the brain are even aware that [...]
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