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Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
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This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear …
Standing For The Public: A Lost History, Elizabeth Magill
Standing For The Public: A Lost History, Elizabeth Magill
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This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal …