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Full-Text Articles in Law
Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank
Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank
Faculty Articles and Other Publications
In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …
Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant
Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant
Faculty Articles and Other Publications
In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell's was that such abuse of language - which in his novel he labeled "Newspeak"-would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court's June 28 decision both …
The Empirical Judiciary, A. Christopher Bryant
The Empirical Judiciary, A. Christopher Bryant
Faculty Articles and Other Publications
This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts …
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Faculty Articles and Other Publications
In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on …