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Textualism For Realists, Ian Samuel Apr 2019

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.


Arguing With Friends, William Baude, Ryan D. Doerfler Nov 2018

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the ...


Why The Burger Court Mattered, David A. Strauss Apr 2018

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.


Thin Rationality Review, Jacob Gersen, Adrian Vermeule Jun 2016

Thin Rationality Review, Jacob Gersen, Adrian Vermeule

Michigan Law Review

Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on ...


Six Overrulings, Andrew Koppelman Apr 2015

Six Overrulings, Andrew Koppelman

Michigan Law Review

John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional ...


Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher Apr 2014

Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher

Michigan Law Review

Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most ...


Justice Brennan: Legacy Of A Champion, Dawn Johnsen Apr 2013

Justice Brennan: Legacy Of A Champion, Dawn Johnsen

Michigan Law Review

During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing ...


But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe Apr 2011

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the ...


Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander Jan 2008

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the ...


On Dworkin And Borkin, Tom Lininger Apr 2007

On Dworkin And Borkin, Tom Lininger

Michigan Law Review

This Essay will use Dworkin's and Davis's scholarship as a jumping-off point for a discussion of the Supreme Court nomination process. I argue that while Dworkin's and Davis's books, when read together, expose a significant problem with the current nomination process, a possible solution to this predicament may lie in a change to the judicial code of ethics and the procedural rules for confirmation of judges. My analysis will proceed in four steps. Part I will address Dworkin's arguments. Part II will evaluate the analysis and evidence in Davis's book. Part III will consider ...


Brown And Lawrence (And Goodridge), Michael J. Klarman Dec 2005

Brown And Lawrence (And Goodridge), Michael J. Klarman

Michigan Law Review

One year shy of the fiftieth anniversary of Brown v. Board of Education, the Justices issued another equality ruling that is likely to become a historical landmark. In Lawrence v. Texas, the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements. Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and the personal ...


Textualism, The Unknown Ideal?, William N. Eskridge Jr. May 1998

Textualism, The Unknown Ideal?, William N. Eskridge Jr.

Michigan Law Review

In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the ...


Justice Oliver Wendell Holmes: Law And The Inner Self, Michael A. Carrier May 1995

Justice Oliver Wendell Holmes: Law And The Inner Self, Michael A. Carrier

Michigan Law Review

A Review of Justice Oliver Wendell Holmes: Law and the Inner Self by G. Edward White


Justice Lewis F. Powell And The Jurisprudence Of Centrism, Mark Tushnet May 1995

Justice Lewis F. Powell And The Jurisprudence Of Centrism, Mark Tushnet

Michigan Law Review

A Review of Justice Lewis F. Powell, Jr by John C. Jeffries, Jr.


Hugo Black Among Friends, Dennis J. Hutchinson May 1995

Hugo Black Among Friends, Dennis J. Hutchinson

Michigan Law Review

A Review of Hugo Black: A Biography by Roger K. Newman


Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow Mar 1995

Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

A Reply to Yale Kamisar's Response to the "Fifth Amendment Principles: The Self-Incrimination Clause"


Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow Mar 1995

Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.


A Biography Of The Second Justice Harlan, Louis R. Cohen May 1993

A Biography Of The Second Justice Harlan, Louis R. Cohen

Michigan Law Review

A Review of John Marshall: Great Dissenter of the Warren Court by Tinsley E. Yarbrough


Abe Fortas: A Biography, Michael F. Colosi May 1991

Abe Fortas: A Biography, Michael F. Colosi

Michigan Law Review

A Review of Abe Fortas: A Biography by Laura Kalman


The Parable As Legal Scholarship, G. Edward White May 1989

The Parable As Legal Scholarship, G. Edward White

Michigan Law Review

A Review of Two Jewish Justices: Outcasts in the Promised Land by Robert Burt


Justices And Presidents: A Political History Of Appointments To The Supreme Court (2d Edition), James S. Portnoy Apr 1986

Justices And Presidents: A Political History Of Appointments To The Supreme Court (2d Edition), James S. Portnoy

Michigan Law Review

A Review of Justices and Presidents: A Political History of Appointments to the Supreme Court (2d edition) by Henry J. Abraham


Judge Picking, Abner J. Mikva Apr 1986

Judge Picking, Abner J. Mikva

Michigan Law Review

A Review of God Save This Honorable Court: How the Choice of Supreme Court Justices Shapes Our History by Laurence H. Tribe


Statesman Of The Old Republic, Craig Joyce Apr 1986

Statesman Of The Old Republic, Craig Joyce

Michigan Law Review

A Review of Supreme Court Justice Joseph Story: Statesman of the Old Republic by R. Kent Newmyer


Brandeis, Michigan Law Review Feb 1984

Brandeis, Michigan Law Review

Michigan Law Review

A Review of Brandeis by Lewis J. Paper


Does Doctrine Matter?, Frederick Schauer Feb 1984

Does Doctrine Matter?, Frederick Schauer

Michigan Law Review

A Review of The Burger Court: The Counter-Revolution That Wasn't by Vincent Blasi


Toward Increased Judicial Activism: The Political Role Of The Supreme Court, Michigan Law Review Feb 1984

Toward Increased Judicial Activism: The Political Role Of The Supreme Court, Michigan Law Review

Michigan Law Review

A Review of Toward Increased Judicial Activism: The Political Role of the Supreme Court by Arthur Selwyn Miller


Is The Burger Court Really Like The Warren Court?, Paul Bender Feb 1984

Is The Burger Court Really Like The Warren Court?, Paul Bender

Michigan Law Review

A Review of The Burger Court: The Counter-Revolution That Wasn't by Vincent Blasi


Dissenting Opinions By Supreme Court Justices In Federal Income Tax Controversies, Walter J. Blum Dec 1983

Dissenting Opinions By Supreme Court Justices In Federal Income Tax Controversies, Walter J. Blum

Michigan Law Review

What is to be learned from this review of the various analyses offered in dissenting tax opinions over the past five terms of the Supreme Court? When the Court has decisively interpreted narrow or technical language in the statute, dissenters all too often indulge in lengthy analyses that can only serve to create further confusion. Only when the Court focuses on a judicially made rule or an issue with constitutional implications is a broader dissent appropriate. If dissenters generally adhered to the guidelines set forth at the outset of this Article the tax world would, I believe, be at least ...


Psycho-Enigmatizing Felix Frankfurter, Eugene Gressman Mar 1982

Psycho-Enigmatizing Felix Frankfurter, Eugene Gressman

Michigan Law Review

A Review of The Enigma of Felix Frankfurter by H.N. Hirsch


A Psychohistorical View Of Mr. Justice Frankfurter, Andrew S. Watson Mar 1982

A Psychohistorical View Of Mr. Justice Frankfurter, Andrew S. Watson

Michigan Law Review

A Review of The Enigma of Felix Frankfurter by H.N. Hirsch