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Articles 1 - 2 of 2
Full-Text Articles in Jurisprudence
Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank
Faculty Articles and Other Publications
Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …
Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank
Faculty Articles and Other Publications
This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the …