Thursday, June 6, 2013

Orren and Walker on Paths Not Taken in Marbury

[We've just learned that this article is now available ungated on SSRN.]

We don’t always post on gated articles, but this one looks interesting.  Karen Orren and Christopher Walker, University of California, Los Angeles, have posted an abstract for Cold Case File: Indictable Acts and Officer Accountability in Marbury v. Madison, which appears in the American Political Science Review 107 (May 2013): 241-59.  Here it is:
William Marbury (credit)
Starting from the position that officer accountability is a core value of American constitutionalism, this article reassesses Marbury v. Madison in light of the indictable acts connected to the nondelivery of Marbury’s commission. First, it reads Chief Justice Marshall’s opinion against the background of personal and political hostility among the principals, including between Marbury and President Jefferson. Second, it identifies avenues of further redress open to Marbury before and after the Supreme Court’s refusal of the mandamus order, and it considers why they were not pursued. Finally, having identified alternative procedural traditions on which Marshall could have drawn, and reviewed decisions by state and federal judges in analogous suits against officers, it concludes that Marbury’s deepest contribution was to elevate the principle of jurisdiction over the imperative of remedy in constitutional decision making.