Law Commons^™

Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy

Ken Levy

No abstract provided.

When Scalia Wasn't Such An Originalist, Michael Lewyn

Michael E Lewyn

2016 Planetizen.Com Blog Posts, Michael Lewyn

Michael E Lewyn

Hayekian Statutory Interpretation: A Response To Professor Bhatia, John Ehrett

John Ehrett

In this Essay, I challenge Professor Gautam Bhatia’s recent claim that a Hayekian worldview offers the most rational framing of the philosophical vision underlying Justice Scalia’s jurisprudence. I argue that Hayek’s conception of law, more properly understood, emphasizes the context of social interaction patterns, rather than focusing exclusively on individual autonomous agents. I subsequently trace the resulting implications for interpretive methodology that flow from this distinction, and ultimately address the discontinuities between the normative visions of liberty espoused by Hayek and Scalia.

Catechism Or Imagination: Is Justice Scalia's Judicial Style Typically Catholic, Donald L. Beschle

Donald L. Beschle

No abstract provided.

Justice Scalia's Jurisprudence, Megim A. Parks

Megim A Parks

This paper analyzes Justice Scalia's decisions and reasonings as to affirmative action, examining closely his rulings regarding what he calls "disparate-impact" discrimination versus "unintentional" discrimination, focusing on cases wherein affirmative action was either questioned or considered.

The Strangely Overlooked Cases Involving Non-Marital Children And Their Constitutional Relevance To Lesbian/Gay Civil Rights Claims, William B. Turner

William B Turner

This essay explores the numerous cases in which the United States Supreme Court has examined laws and policies, mostly state, but some federal, that discriminate against non-marital children for their unrecognized relevance to lesbian/gay civil rights claims. It notes that the excuse for such statutes and policies – the expression of the society’s moral disapproval of particular forms of sexual activity – is identical to the justification that advocates of discrimination against lesbians and gay men offer for their desire to discriminate. It further notes that the reasons Supreme Court justices have offered for striking down discriminations against non-marital children …

Faint-Hearted Fidelity To The Common Law In Justice Scalia’S Confrontation Clause Trilogy, Ellen Yee

ellen yee

FAINT-HEARTED FIDELITY TO THE COMMON LAW IN JUSTICE SCALIA’S CONFRONTATION CLAUSE TRILOGY Ellen Liang Yee ABSTRACT In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation …

Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe

Alan W Moe Jr

Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of …

An Intellectual History Of Judicial Activism, Roger Craig Green

Roger Craig Green

This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.

A second project is to explain in positive terms …

An Intellectual History Of Judicial Activism, Craig Green

Roger Craig Green

This Article seeks to transform how readers view judicial activism. From newsrooms to confirmation hearings, judicial activism is a uniquely potent and popular epithet condemning judicial misconduct. By contrast, most legal scholars either eschew activism-talk as too vague, or they adopt unsound definitions of the term as (i) any exercise of judicial review or (ii) any unfavorable result. These trends have segregated normative debates over judicial activity, with solidly unfortunate results.

This Article reclaims the term judicial activism by exploring the concept of judicial activism that underlies it. One goal of this Article is to dispel widespread misperceptions about judicial …

Scalian Skepticism And The Sixth Amendment In The Twilight Of The Rehnquist Court, M. Katherine B. Darmer

M. Katherine B. Darmer

While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment. In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the Rehnquist Court is now the invalidation of the U.S. Sentencing Guidelines and a testimonial approach to …

Why Supreme Court Justices Cite Legislative History: An Empirical Investigation, David S. Law, David Zaring

David S. Law

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a statute. We …

The Other Side Of The Coin: Implications For Policy Formation In The Law Of Judicial Interpretation. Book Note: A Review Of A Matter Of Interpretation: Federal Courts And The Law By Antonin Scalia, Donald J. Kochan

Donald J. Kochan

Justice Scalia defends textualism as the only form of interpretation that should govern judicial interpretation of statutes and the Constitution. The book begins with an essay by Justice Scalia establishing the framework of his interpretive model and arguing that his model is mandated to achieve institutional legitimacy in a constitutional system of separated powers and for the protection of democracy. Comments to this essay follow from four distinguished scholars. Each comment is addressed in the final pages by a response from Justice Scalia. This Article presents an overview of Justice Scalia's argument, the arguments embodied in the comments, and discusses …