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The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford
The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford
Faculty Scholarship
In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray
Faculty Scholarship
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …