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John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell
John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
Faculty Scholarship
No abstract provided.
Owning Heller, Darrell A. H. Miller
Owning Heller, Darrell A. H. Miller
Faculty Scholarship
Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – …
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Faculty Scholarship
The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …
Precedent And The Semblance Of Law, Stephen E. Sachs
Precedent And The Semblance Of Law, Stephen E. Sachs
Faculty Scholarship
Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting …
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel
Faculty Scholarship
Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …
What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga
What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga
Duke Law Master of Judicial Studies Theses
From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel
The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel
Faculty Scholarship
Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …
Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii
Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii
Faculty Scholarship
No abstract provided.
Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller
Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell
The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty
A Coase Theorem For Constitutional Theory, Neil S. Siegel
A Coase Theorem For Constitutional Theory, Neil S. Siegel
Faculty Scholarship
There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again. …
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Faculty Scholarship
No abstract provided.
The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin
The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin
Faculty Scholarship
No abstract provided.