Judges Commons^™

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

Articles

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …

Judge Posner’S Simple Law, Mitchell N. Berman

All Faculty Scholarship

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh

Law Faculty Publications

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and …

J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …

Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso

Pepperdine Law Review

No abstract provided.

Authorizing Interpretation, Pierre Schlag

Publications

No abstract provided.

Three Mistakes About Interpretation, Paul Campos

Publications

No abstract provided.

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Cannibal Moves: An Essay On The Metamorphoses Of The Legal Distinction, Pierre Schlag

Publications

No abstract provided.

The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers

Journal Articles

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory (Michael J. Perry, The Constitution, the Courts, and Human Rights (New Ha- ven: Yale University Press, 1982); Sotirios A. Barber, On What the Constitution Means (Baltimore and London: The Johns Hopkins University Press, 1984); and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). They explore important questions about the role of the Supreme Court and the meaning of the Constitution.