Law Commons^™

Court Packing Is A Chimera, Brian L. Frye

Law Faculty Scholarly Articles

The dream of the 1930s is alive in Washington. Democrats see

Republicans hemorrhaging voters as Trump struggles with the

economy and the pandemic and are salivating at the prospect of

retaking not only the White House, but also the Senate. Of course, you

should never sell a bearskin until you've caught the bear. But even a

blowout victory can't get Democrats the prize they really want, a

Supreme Court majority. So, in back-to-the-future fashion, many

progressives are pushing the idea of court packing. After all, in politics,

rules are made to be broken.

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

The Supreme Court And Our Culture Of Irresponsibility, Mary J. Davis

Law Faculty Scholarly Articles

This article chronicles the Supreme Court's expansion of the “culture of irresponsibility,” where institutional defendants are freed from tort liability with no check on the abuse of such immunity. Professor Davis describes the Court's progression toward immunity in products liability decisions of the past decade including East River Steamship, Boyle, Cipollone, and Lohr. Noting the effect of the Court's decisions in promoting institutional irresponsibility, Professor Davis encourages the Court to use its “cultural influence” and reconsider its broad extension of immunity which has spread to situations and institutional defendants the Court never imagined.

"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers

Law Faculty Scholarly Articles

Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …