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Full-Text Articles in Law
Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher
Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher
Vanderbilt Journal of Entertainment & Technology Law
The goal of this article is a very modest one: to use one piece of music, the first movement of Beethoven's Eroica symphony, to consider how legal scholars, using the doctrinal principles they have developed to interpret the Constitution, would interpret the piece as conductors. This article makes no pretense of offering a new genre of legal hermeneutics; there is no suggestion here that a "law and musicology" movement will provide a comprehensive analytical framework which we can use to solve problems of Constitutional interpretation. Rather, this article suggests that musical interpretative "doctrines"--if so loose a collection of practices merits …
The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack
The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack
Vanderbilt Law School Faculty Publications
There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct …
Textualism And Judgment, Suzanna Sherry
Textualism And Judgment, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …