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Full-Text Articles in Law
Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein
Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein
Michigan Law Review
What is permitted, and what is prohibited, by the equality principle of a liberal democracy? Does affirmative action run afoul of that principle? And where should we look to answer these questions? Many critics of affirmative action take it as axiomatic that affirmative action violates the equality principle. But this is far from clear. Every law classifies. The current law of equality itself classifies by, for example, treating discrimination on the basis of race differently from discrimination on the basis of age. No one thinks that the law of equality is, for this reason, inconsistent with the Equal Protection Clause. …
Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt
Constitutional Fact And Theory: A Response To Chief Judge Posner, Deborah Jones Merritt
Michigan Law Review
In his James Madison Lecture on Constitutional Law, Chief Judge Richard Posner chides both professors and judges for devoting too much attention to constitutional theory and too little time to empiricism. Although I agree with Judge Posner's endorsement of empiricism, I dispute the roles he assigns empiricism and theory. Social science matters when interpreting the Constitution, but not in the way Posner posits. Facts cannot replace constitutional theories, nor can they mechanically resolve questions posed by theory. Instead, empirical knowledge is most useful in unmasking the theoretical assumptions that undergird constitutional law, in focusing those theories, and in contributing to …
Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen
Lawyers, Law, And Contract Formation: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Robert K. Rasumssen
Michigan Law Review
Attempting to infuse the austerity of theory with a dose of reality, an intrepid group of legal scholars has left the security of the office and ventured into the work-a-day world of commercial practices. The information that they have gathered and are sharing with the rest of us is furthering our understanding of the interaction between commercial law and commercial practice. Embedded in much of the research they have generated is the not-so-flattering conclusion that law professors suffer from a self-serving bias. Those of us in the academy engage in the assumption, often unstated or even unacknowledged, that the law …