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Full-Text Articles in Jurisprudence
The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg
The Paradoxical Impact Of Scalia's Campaign Against Legislative History, Stuart Minor Benjamin, Kristen M. Renberg
Faculty Scholarship
Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges’ use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative …
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie
Faculty Scholarship
This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.