The D'Oh! Of Popular Constiutitonalism, Neal Devins
Sep 2019
The D'Oh! Of Popular Constiutitonalism, Neal Devins
Neal E. Devins
No abstract provided.
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Sep 2019
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Construction, Originalist Interpretation And The Complete Constitution, Richard Kay
Dec 2016
Construction, Originalist Interpretation And The Complete Constitution, Richard Kay
Richard Kay
In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public …
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan
Dec 2007
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan
Matthew Parlow
Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …
