Law Commons^™

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Faculty Scholarship

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutional discourse; (3) that conservative-leaning speakers have driven this …

Are Mental States Relevant For Statutory And Constitutional Interpretation, Kent Greenawalt

Faculty Scholarship

Judges in the United States must interpret statutes and constitutions. Largely because these texts are framed in the English language, a language shared by legislators, judges, and other citizens, judges employ sufficiently common techniques to sustain a coherent practice. Lawyers can often say with some confidence how judges will construe particular legal provisions, and, when they have serious doubts, they can sketch the likely alternatives. But we are now in an era of sharp theoretical disagreement over what judges do when they interpret authoritative texts.

In difficult cases of statutory interpretation, are judges mainly trying to give language its ordinary …

Formal And Functional Approaches To Separation-Of-Powers Questions – A Foolish Inconsistency?, Peter L. Strauss

Faculty Scholarship

Is it possible to give contemporary shape to the principles of constitutional structure we know as "separation of powers"? That question was sharply presented once again on the final day of the Supreme Court's most recent Term, when it decided two cases raising separation-of-powers issues. In Bowsher v. Synar, the subject of this symposium, the Court found constitutional fault in Congress's asserted expansion of its own powers at the expense of the President's article II authority. Commodity Future Trading Commission v. Schor, far less widely noted, upheld against constitutional challenge Congress's assignment to an administrative adjudicator of the …

Economics Of Public Use, Thomas W. Merrill

Faculty Scholarship

The fifth amendment to the United States Constitution, as well as most state constitutions, provides that private property shall not be taken "for public use" unless just compensation is paid. American courts have long construed this to mean that some showing of "publicness" is a condition precedent to a legitimate exercise of the power of eminent domain. Thus, when a proposed condemnation of property lacks the appropriate public quality, the taking is deemed to be unconstitutional and can be enjoined. In practice, however, most observers today think the public use limitation is a dead letter. Three recent decisions, upholding takings …

Government By Judiciary: The Transformation Of The Fourteenth Amendment, Gerard E. Lynch

Faculty Scholarship

As its title suggests, Raoul Berger's Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian's book, strongest when using the historian's tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms …