Judicial Review

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Volume 93.5
Native Marburys: Judicial Review in Tribal Courts
Elizabeth Hidalgo Reese
Associate Professor of Law, Stanford Law School.

A sincere thank you to the editors at The University of Chicago Law Review, who were a total joy to work with. Many thanks to Greg Ablavsky, Matthew Fletcher, and Angela Riley for helpful comments and insights about the piece’s development. I could not have finished this without above and beyond edits from Adam Davidson and Easha Anand. Thanks to Richard Ford, Michelle Anderson, and George Triantis for being supportive, patient, and understanding so that I had time to finish writing this. This work would not have been possible without excellent research assistance from Madison Burson, Delaina Dixiemarie Castillo, Marissa Cheng Uri, Julia Regan, and Erin Hartman Wenokur. A final thank you to my incredible parents, Drs. George and Debbie Reese, and my husband, Nick Hidalgo, who all took incredible care of me (and Eevee) while I was slogging through writing this throughout a hard and exhausting pregnancy.

This Article is the first comprehensive account of judicial review in tribal courts. It makes four contributions. First, it provides insights about the institution of judicial review and its relationship to governance, highlighting that it is a choice that must be made with careful attention to the source and scope of judicial power, and to public opinion. Second, it helps us understand what tribal courts are, and how they fit into their tribal government systems. Third, it demonstrates how this better understanding of tribal courts is essential to the rights questions that preoccupy mainstream discussion of and lawmaking about tribal courts. Finally, it evidences the complexity of legal discourse in tribal courts. It demonstrates that tribal courts are thinking deeply about the law and the way that the law structures their governments and can limit or protect the rights of their citizens.

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Volume 92.5
The Amended Statute
Jesse M. Cross
Professor of Law, Joseph F. Rice School of Law, University of South Carolina.

The author wishes to thank Aaron Galbraith for his outstanding data analysis contributions. The author also wishes to thank William Eskridge, Abbe Gluck, Anita Krishnakumar, Nicholas Parrillo, Josh Chafetz, Alexander Zhang, and all the participants in the Legislation Roundtable at the Georgetown University Law Center, the Legislation Colloquium at the Georgetown University Law Center, and the works in progress workshop at the Joseph F. Rice School of Law.

We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an afterthought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society. In this Article, Jesse M. Cross demonstrates that, instead, the amended statute belongs at the center of public law. To that end, he undertakes three projects with respect to the amended statute: documenting, theorizing, and interpreting.

Judicial Review Statutory Interpretation
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Volume 91.7
Intervention and Universal Remedies
Monica Haymond
Assistant Professor of Law, Northwestern Pritzker School of Law.

For helpful comments and discussions on this Article, I am thankful to Payvand Ahdout, Rachel Bayefsky, Judge Stephanos Bibas, Josh Bowers, Upnit K. Bhatti, Sergio Campos, Maureen Carroll, Guy-Uriel Charles, Zachary Clopton, I. Glenn Cohen, Ryan Doerfler, Richard Fallon, Jonathan Gould, James Greiner, Andrew Hammond, Judge Adalberto Jordan, Brian Lipshutz, Caleb Nelson, Andrea Olson, Richard Re, William Rubenstein, Stephen Sachs, Joanna Schwartz, David Simon, Susannah Tobin, and the participants in workshops at Harvard Law School, the Annual Civil Procedure Workshop, the American Constitution Society Junior Scholars Public Law Workshop, the Junior Faculty Federal Courts Workshop, and the Association of American Law Schools Remedies Workshop. I am also grateful to the editors of the University of Chicago Law Review for their invaluable editorial assistance.

This Article examines over 500 nationwide-injunction cases and shows that a surprising participant is influencing the result: an outsider who has joined as an intervenor. Judicial discretion over intervention functionally gives courts control over how nationwide-injunction cases proceed, or whether they proceed at all. With few principles guiding that discretion, procedural rulings can appear to be influenced by the court’s own political leanings, undermining public confidence in the court’s decision on the merits. This Article represents the first scholarly examination of the significant role that intervention plays in nationwide-injunction suits. More broadly, this Article uses intervention to explore the function of procedural rules and the federal courts in a democratic system. Finally, this Article offers two reforms that would promote procedural values and cabin the role of the federal courts in ideological litigation.

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