Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
Testing Minimalism: A Reply, Cass R. Sunstein
Testing Minimalism: A Reply, Cass R. Sunstein
Michigan Law Review
Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics. …
The Originalist And Normative Case Against Judicial Activism: A Reply To Professor Randy Barnett, Steven G. Calabresi
The Originalist And Normative Case Against Judicial Activism: A Reply To Professor Randy Barnett, Steven G. Calabresi
Michigan Law Review
In Restoring the Lost Constitution: The Presumption of Liberty, Professor Randy E. Barnett lays out a bold defense of the theory of originalism in constitutional interpretation. Professor Barnett's book is perhaps the most important book about originalism since Robert H. Bork's The Tempting of America. Barnett presents a normative case as to why contemporary Americans should agree to be governed by the original meaning of the Constitution, and, like most sophisticated originalists, he nicely distinguishes between original meaning and original intent. Barnett correctly notes that what really matters in constitutional interpretation is not what the Framers intended that provision …
Deferring, Frederick Schauer
Deferring, Frederick Schauer
Michigan Law Review
Many academics, upon encountering a book on deference by a leading legal theorist, would assume that the book was still another contribution to a long and prominent debate about the existence (or not) of an obligation to obey the law. But that would be a mistake. In fact, this is a book not about obligation or obedience but about deference, and it is precisely in that difference that the significance of Philip Soper's book lies. Especially in law, where the Supreme Court (sometimes) defers to the factual, legal, and even constitutional determinations of Congress and administrative agencies, where appellate courts …
Private Attorneys General And The First Amendment, Trevor W. Morrison
Private Attorneys General And The First Amendment, Trevor W. Morrison
Michigan Law Review
The "private attorney general" is under fire again. It has been in and out of favor in the six decades since it was named, in part because it has come to signify so many different things. At its core, however, the term denotes a plaintiff who sues to vindicate public interests not directly connected to any special stake of her own. The remedies sought in such actions tend to be correspondingly broad: rather than seeking redress for discrete injuries, private attorneys general typically request injunctive or other equitable relief aimed at altering the practices of large institutions. From school desegregation …