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Full-Text Articles in Judges
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Shlomo C. Pill
This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …
Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron
Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron
Pace International Law Review Online Companion
In the realm of American jurisprudence, little draws more excitement or controversy than investigating the role of federal judges in our constitutional order. Yet, at the same time, the scholarly literature has not settled upon a singular descriptive device to explain how federal judges actually carry out this role. In broad strokes, current academic commentary appears to be divided on the issue of whether fidelity to the law or fidelity to political ideology largely determines how judges decide cases. This division, however interesting it may be, should not be afforded the luxury of being examined on a level playing field. …
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
Sarah L Brinton
The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.
“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans
“Nixon’S Sabotage”: How Politics Pushed The “Discriminatory Purpose” Requirement Into Equal Protection Law, Danieli Evans
Danieli Evans
This article describes the way that politics—resistance from the elected branches coupled with President Nixon appointing Chief Justice Burger—shaped the Court’s unanimous decision in Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), a school desegregation case that played a crucial role in limiting the forms of state action considered unconstitutional discrimination. Chief Justice Burger defied longstanding Supreme Court procedure to assign himself the majority opinion even though he disagreed with the majority outcome. Justice Douglas alleged that he did this “in order to write Nixon’s view of freedom of choice into the law.” Justice Burger’s opinion laid the foundation for limiting …
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Russell A. Miller
This Article examines Justice Ginsburg's overlooked federalism jurisprudence and concludes that it almost perfectly complements President Bill Clinton's New Democratic centrism, especially his pro-state federalism agenda. The Article concludes that their nuanced, "centrist" approach to federalism has two characteristics. First,t hey value the states 'governing autonomy and show respect for the state agents that realize that autonomy. Second, they credit the states as intersubjective actors engaged in the pursuit of their interests, albeit in political processes usually carried out at the federal level.
Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz
Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz
Justin Schwartz
Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …