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Full-Text Articles in Law
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Brannon P. Denning
In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …
Why Justice Ginsburg Should Step Down, Kent Greenfield
Why Justice Ginsburg Should Step Down, Kent Greenfield
Kent Greenfield
No abstract provided.
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
Using our now-famous "Five Takes" format, Glenn Reynolds and I analyze NFIB v. Sebelius from five different perspectives: (1) Sebelius as Marbury; (2) Sebelius as Bakke; (3) Sebelius and the "legitimating" power of judicial review; (4) Sebelius as a Thayerian decision; and (5) Sebelius as part of some long game of Chief Justice Roberts'.
Robert Bork: All Brain, No Heart, Kent Greenfield
Robert Bork: All Brain, No Heart, Kent Greenfield
Kent Greenfield
No abstract provided.
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning
Brannon P. Denning
In this brief comment on Ben Barton's "An Empirical Study of Supreme Court Justice Pre-Appointment Experience," I argue that appointing persons currently or formerly active in partisan politics would likely not benefit the Court as some have claimed and might affirmatively harm the Court as an institution.
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Brannon P. Denning
Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …
Common Law Constitutional Interpretation: A Critique, Brannon P. Denning
Common Law Constitutional Interpretation: A Critique, Brannon P. Denning
Brannon P. Denning
This is a review of David Strauss, The Living Constitution (2010). In it, I critique his claim that common law constitutional interpretation is a superior alternative to originalism.
What Hath Raich Wrought? Five Takes, Brannon P. Denning, Glenn H. Reynolds
What Hath Raich Wrought? Five Takes, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
Written for a paper symposium on Gonzales v. Raich, 545 U.S. 1 (2005), we describe the effects of the decision on what had seemed a renewed interest on the part of the Court to limit federal power.