Wake Forest Law Review
Robert F. Nagel, Marbury v. Madison and Modern Judicial Review, 38 Wake Forest L. Rev. 613 (2003), available at https://scholar.law.colorado.edu/articles/537.
This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence of the decision on contemporary judicial behavior in a fuller way because that influence is the consequence of the interaction between these two aspects of the case.
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