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Full-Text Articles in Law
Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson
Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson
Faculty Scholarship
Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When …
Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin
Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin
Akron Law Review
At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way for …
Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean
Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean
Akron Law Review
Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …
The Death Penalty And Justice Scalia's Lines, J. Richard Broughton
The Death Penalty And Justice Scalia's Lines, J. Richard Broughton
Akron Law Review
In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the …
Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello
Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello
Akron Law Review
Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …
The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii
The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii
University of Richmond Law Review
No abstract provided.
Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley
Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley
Journal Articles
Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his …
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Journal Articles
In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …
The Impact Of Justice Scalia's Replacement On Gender Equality Issues, Wilson R. Huhn
The Impact Of Justice Scalia's Replacement On Gender Equality Issues, Wilson R. Huhn
ConLawNOW
The last forty-six years may be accurately described as the era of the modern Republican Supreme Court. As a result of presidential elections, Republican presidents have nominated all ten of the Justices appointed to the United States Supreme Court between 1969 and 1991. Republicans have thus controlled the Court since 1970. During this period the right to gender equality was recognized and the right to marriage equality was realized. However, also during this period many Republican Justices staunchly opposed gender equality, and far more remains to be accomplished.
Since Justice Scalia’s death, the Supreme Court has been deadlocked on a …
Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law
Newroom: Yelnosky: Future Of Public Sector Union 'Dues' 01-14-2017, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy
Journal Articles
No abstract provided.
Scalia In The Casebooks, Brian T. Fitzpatrick, Paulson K. Varghese
Scalia In The Casebooks, Brian T. Fitzpatrick, Paulson K. Varghese
Vanderbilt Law School Faculty Publications
In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at …
Did Justice Scalia Have A Theory Of Interpretation?, Gary S. Lawson
Did Justice Scalia Have A Theory Of Interpretation?, Gary S. Lawson
Faculty Scholarship
It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with …