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Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill
Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill
Faculty Scholarship
It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. They were cousins. Augustus Hand was a few years older than Learned Hand but was appointed to the …
The Pre-Session Recess, Peter L. Strauss
The Pre-Session Recess, Peter L. Strauss
Faculty Scholarship
In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to …
The Judicial Prerogative, Thomas W. Merrill
The Judicial Prerogative, Thomas W. Merrill
Faculty Scholarship
In John Locke's account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power "to act according to discretion for the public good, without the prescription of the law and sometimes even against it. "Locke explained that such a discretionary power is required because "it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on …