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Response: Rights As Trumps Of What?, Joseph Blocher Jan 2019

Response: Rights As Trumps Of What?, Joseph Blocher

Faculty Scholarship

No abstract provided.


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


The Law Of Interpretation, William Baude, Stephen E. Sachs Jan 2017

The Law Of Interpretation, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.

Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped ...


Originalism Without Text, Stephen E. Sachs Jan 2017

Originalism Without Text, Stephen E. Sachs

Faculty Scholarship

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.


Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young Jan 2016

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring and ...


Originalism’S Bite, William Baude, Stephen E. Sachs Jan 2016

Originalism’S Bite, William Baude, Stephen E. Sachs

Faculty Scholarship

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has ...


Brief Of Federal Courts Scholars As Amici Curiae In Support Of The Petitioner, Willaim Araiza, Howard M. Wasserman, Lawrence Sager, Stephen I. Vladeck, Ernest A. Young Jan 2015

Brief Of Federal Courts Scholars As Amici Curiae In Support Of The Petitioner, Willaim Araiza, Howard M. Wasserman, Lawrence Sager, Stephen I. Vladeck, Ernest A. Young

Faculty Scholarship

No abstract provided.


The Effectiveness Of International Adjudicators, Laurence R. Helfer Jan 2014

The Effectiveness Of International Adjudicators, Laurence R. Helfer

Faculty Scholarship

This chapter, in the Oxford Handbook of International Adjudication, provides an overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third approach ...


The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs Jan 2014

The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs

Faculty Scholarship

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible ...


Interpretive Methodology And Delegations To Courts: Are ‘Common-Law Statutes’ Different?, Margaret H. Lemos Jan 2013

Interpretive Methodology And Delegations To Courts: Are ‘Common-Law Statutes’ Different?, Margaret H. Lemos

Faculty Scholarship

It is hard to find consensus on questions of statutory interpretation. Debates rage on about the appropriate goals of interpretation and the best means of achieving those ends. Yet there is widespread agreement, even among traditional combatants on the statutory interpretation field, when it comes to so-called “common-law statutes.” Textualists concede that text is not controlling; originalists admit that judicial construction of common-law statutes need not be keyed to the specific intent of the enacting Congress; and staunch defenders of strict statutory stare decisis allow frequent departures from precedent.

So what are common-law statutes? It is easy enough to name ...


Jack Balkin’S Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel Jan 2013

Jack Balkin’S Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel

Faculty Scholarship

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.”

Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — the pervasiveness of ...


Narrative, Truth, And Trial, Lisa Kern Griffin Jan 2013

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result ...


The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel Jan 2013

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.


The Politics Of Statutory Interpretation, Margaret H. Lemos Jan 2013

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows ...


Judging The Flood Of Litigation, Marin K. Levy Jan 2013

Judging The Flood Of Litigation, Marin K. Levy

Faculty Scholarship

The Supreme Court has increasingly considered a particular kind of argument: that it should avoid reaching decisions that would “open the floodgates of litigation.” Despite its frequent invocation, there has been little scholarly exploration of what a floodgates argument truly means, and even less discussion of its normative basis. This Article addresses both subjects, demonstrating for the first time the scope and surprising variation of floodgates arguments, as well as uncovering their sometimes-shaky foundations. Relying on in-depth case studies from a wide array of issue areas, the Article shows that floodgates arguments primarily have been used to protect three institutions ...


Interpretive Contestation And Legal Correctness, Matthew D. Adler Jan 2012

Interpretive Contestation And Legal Correctness, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Statutory Meanings: Deriving Interpretive Principles From A Theory Of Communication And Lawmaking, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2011

Statutory Meanings: Deriving Interpretive Principles From A Theory Of Communication And Lawmaking, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.


Empagran’S Empire: International Law And Statutory Interpretation In The Us Supreme Court Of The 21st Century, Ralf Michaels Jan 2011

Empagran’S Empire: International Law And Statutory Interpretation In The Us Supreme Court Of The 21st Century, Ralf Michaels

Faculty Scholarship

In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. The article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with ...


Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young Jan 2011

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.


Special Incentives To Sue, Margaret H. Lemos Jan 2011

Special Incentives To Sue, Margaret H. Lemos

Faculty Scholarship

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when such incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote ...


Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher Jan 2011

Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher

Faculty Scholarship

No abstract provided.


The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos Jan 2010

The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Faculty Scholarship

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the ...


Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell Jan 2010

Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, Ernest A. Young Jan 2010

The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, Ernest A. Young

Faculty Scholarship

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality.


This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil ...


On Not Being “Not An Originalist”, H. Jefferson Powell Jan 2010

On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos Jan 2009

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.


The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos Jan 2008

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only ...


Why John Mccain Was A Citizen At Birth, Stephen E. Sachs Jan 2008

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Faculty Scholarship

No abstract provided.


What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2007

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.


A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne Jan 2007

A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne

Faculty Scholarship

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.