Jurisprudence Commons^™

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,, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

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 …

Behind The U.S. Reports: Justice Brennan's Unpublished Opinions And Memoranda In New York Times V. Sullivan And Its Progeny, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

The contributions Justice William J. Brennan Jr. made to free expression in general and the law of libel in particular are unquestioned. His opinion in New York Times Co. v. Sullivan and cases that followed established sturdy protection for critics of public officials and helped further the marketplace of ideas that is so important for public discourse. Justice Brennan wrote thousands of words about Sullivan and its impact that never appeared in published opinions, however. Often he was required to alter his writings to accommodate the views of other justices needed for a majority. Those unpublished opinions – and memoranda …

Joint Works Under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation, Michael B. Landau

Faculty Publications By Year

No abstract provided.

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

On Creativity In Constitutional Interpretation, Pierre Schlag

Publications

In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …

The Philosophy And Jurisprudence Of Chief Justice Roberts, Kiel Brennan-Marquez

Utah Law Review

A thicket of commentary has blossomed around the figure of Chief Justice Roberts. The bulk of it, however, has either focused exclusively on his role in the 2011 term or has lumped him in uncritically with the Court’s conservative wing. In response, this Article takes a wider view of his tenure, arguing that Chief Justice Roberts is best understood as an idealist, a true believer in the rule of law, with a special sensitivity toward issues of constitutional structure. In the first Part of the Article, I explore Chief Justice Roberts’s penchant for infusing his opinions with “teaching moments”—a tendency …

Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez

Faculty Scholarship

During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. Conservative pundit Rush Limbaugh and many others railed against her nomination, proclaiming on talk radio broadcasts from coast-to-coast that she is a reverse-racist and nothing less than anti-white. A review of the Supreme Court record of race-related cases demonstrates Justice Sotomayor’s continued commitment to her stated judicial philosophy of fidelity to the law, inasmuch as she has not sought the unilateral imposition of her own personal racial policy preferences but has instead worked as a team player to scrupulously apply legal …

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 …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Faculty Publications By Year

No abstract provided.

Institutional Stress And The Federal District Courts: Judicial Emergencies, Vertical Norms, And Pretrial Dismissals, Daniel J. Knudsen

Utah Law Review

This Article examines the effects of judicial emergencies on the federal district courts. The Administrative Office of the U.S. Courts declares judicial emergencies when a weighted statistic of filings and vacancy days exceeds certain thresholds. This Article presents evidence on the relationship between emergency status in a judicial circuit and the frequency of pretrial disposition in federal district courts within that circuit: a federal district court is statistically more likely to dismiss a case before trial if its corresponding circuit court is in emergency. This evidence suggests that emergency status may affect normative expectations between the federal district courts and …

What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang

UIC Review of Intellectual Property Law

This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which …

The Judge And The Drone, Justin Desautels-Stein

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan