Jurisprudence Commons^™

The Tragedy Of Justice Scalia, Mitchell N. Berman

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Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …

Judge Posner’S Simple Law, Mitchell N. Berman

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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 …

The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas

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No abstract provided.

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

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This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not …

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

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Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to the Concept of Law, clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means “convention” in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense -- specifically, by figuring in …

Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii

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Judicial Restraint And Constitutional Federalism: The Supreme Court's Lopez And Seminole Tribe Decisions, Herbert J. Hovenkamp

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The Senate hearings considering Elena Kagan’s Supreme Court nomination called new attention to the Constitution's Commerce Clause. That concern might seem odd, given the typical lack of strong grassroots concern over the commerce power. But the 2010 election year is different. One characteristic of the largely conservative "Tea Party" movement is a wish to roll back Constitutional time to the regime envisioned by its founders. As the New York Times reported in early July, 2010, members of the movement believe that the “commerce clause in particular has been pushed beyond recognition.” Members of the movement imagine that Congressional power over …