Judges Commons^™

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom

St. Mary's Law Journal

Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.

The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it …

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.

A Matter Of Interpretation: Federal Courts And The Law, Charles R. Priest

Maine Law Review

Justice Scalia's engaging essay, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” and the four comments it provokes, should provide lawyers, judges, and other lawmakers with an interesting evening. Instead of presenting a theoretical view of the role of the federal courts in interpretation, Justice Scalia sketches out a case for “textualism.” “Textualism” is one of several currently contending methods of interpreting statutes and the United States Constitution, and is currently popular among federal judges who see their role as restricting government's powers to those expressly stated in the …

When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus

Michigan Law Review First Impressions

On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …

Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.

University of Richmond Law Review

No abstract provided.

Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman

Michigan Law Review

Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …

Judicial Conduct

Touro Law Review

No abstract provided.

Right To Counsel

Touro Law Review

No abstract provided.

Mr. Justice William Johnson And The Common Incidents Of Life: I, A. J. Levin

Michigan Law Review

When Justice Oliver Wendell Holmes filed his brief dissenting opinion in Lochner v. New York in 1905 he must have noticed something new on the American horizon. In this now famous opinion he initiated the first steps which were to usher in a new era in American jurisprudence. "General propositions do not decide concrete cases," he announced with axiomatic brevity and, thus, gave the first telling blow to what may well be termed "introspective jurisprudence." This generalization on the subject of generality was followed in the opinion by a more concrete application, the implementing assertion that a reasonable man might …

Has The Constitution Gone?, John A. Fairlie

Michigan Law Review

As far back as 1828, Chief Justice Marshall is quoted as saying: "Should Jackson be elected, I shall look upon the government as virtually dissolved." A few years later, when Taney was appointed Chief Justice by Jackson, Daniel Webster wrote: "Judge Story thinks the Supreme Court is gone, and I think so too." Soon afterwards, when the newly constituted Court rendered decisions upholding statutes from which Story dissented, the latter wrote to Judge McLean: "There will not, I fear, ever in our day, be any case in which a law of a State or of Congress will be declared …