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Full-Text Articles in Legal History

Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein Nov 2014

Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein

Maryland Law Review

During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These …


Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman Jun 2014

Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman

Chicago-Kent Law Review

This article explores and examines William E. Nelson’s masterful study of the origins and adoption of the Fourteenth Amendment, The Fourteenth Amendment: From Political Principal to Judicial Doctrine (1988). The article explains that a quarter of a century after he wrote this book, Nelson’s study of the origins and adoption of the Amendment remains the best exploration of these issues. His book illustrates the difficulties of determining the “original intent” of the framers of this complicated and complex Amendment. At the same time, however, Nelson demonstrates that for many issues we can come to a strong understanding of the goals …


Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder Jun 2014

Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder

Chicago-Kent Law Review

My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that …


It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean May 2014

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …


It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean May 2014

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …


Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen Jan 2014

Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen

Book Chapters

If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …


Restoring Constitutional Equilibrium, Adam Lamparello Jan 2014

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words mean. It is …


The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas Jan 2014

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

All Faculty Scholarship

No abstract provided.