Law Commons^™

Thayer Versus Marshall, Gary S. Lawson

Faculty Scholarship

Professor Nagel's intriguing paper1 suggests that James Bradley Thayer's clear error rule of constitutional adjudication 2 is not an effective vehicle for controlling, and indeed may even exacerbate, the tendency toward invective that often characterizes modem court decisions and legal arguments. Professor Nagel is too charitable. To the extent that Thayer's article has had an influence on either the style or substance of modem constitutional law, that influence has been even more pernicious than Professor Nagel lets on. The source of that problem, however, is less the clear error rule itself than the premises that generate and, in Thayer's view, …