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Full-Text Articles in Law
The Age Of Scalia, Jamal Greene
The Age Of Scalia, Jamal Greene
Faculty Scholarship
During periods of apparent social dissolution the traditionalists, the true believers, the defenders of the status quo, turn to the past with an interest quite as obsessive as that of the radicals, the reformers, and the revolutionaries. What the true believers look for, and find, is proof that, once upon a time, things were as we should like them to be: the laws of economics worked; the streams of legal doctrine ran sweet and pure; order, tranquility, and harmony governed our society. Their message is: turn back and all will be well.
Justice Scalia's Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell
Justice Scalia's Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism, Timothy C. Macdonnell
Scholarly Articles
Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology's encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia's opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, …
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman
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
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 …
Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas
Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas
All Faculty Scholarship
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 …
The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan
The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan
Michigan Law Review
Perception often shapes memory. In particular, the way one perceives a noteworthy public figure often shapes that figure's historical legacy. For example, history largely remembers John Coltrane as one of the greatest jazz saxophone players of our time. His improvisational skill, innovative style, and mastery over his instrument all serve to classify him in the public memory as the ultimate jazz performer. Yet, as the example of Coltrane might demonstrate, perception is unjustly deficient. Coltrane was not merely a great saxophone player; he was first and foremost a religious figure whose spirituality drove his creativity and manifested itself in prayerful …
Original Intent And Boris Bittker, Raoul Berger
Original Intent And Boris Bittker, Raoul Berger
Indiana Law Journal
No abstract provided.
Mr. Bork Inquires Into The Origin And Nature Of Permissiveness, Lyle Denniston
Mr. Bork Inquires Into The Origin And Nature Of Permissiveness, Lyle Denniston
Michigan Law Review
A Review of The Tempting of America: The Political Seduction of the Law by Robert H. Bork