Law Commons^™

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme …

Foundational Facts And Doctrinal Change, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Doctrine is at the center of law and legal analysis. This Article argues that we have fundamentally misunderstood its nature. The conventional approach to legal doctrine focuses on theory and applications. What is the doctrine designed to do and how does it function? But many doctrines cannot be adequately understood or evaluated under the conventional model because they contain an additional, hidden element. They are built on foundational facts: potentially contested factual assumptions embedded in the doctrinal structure itself. Foundational facts are judges' generalized and invisible intuitions about how the world works. Whether a defendant acted in a particular way …

Remarks On The Theory Of Appellate Decision And The Rules Or Canons About How Statutes Are To Be Construed, Karl N. Llwellyn

Vanderbilt Law Review

One does not progress far into legal life without learning that there is no single right and accurate way of reading one case, or of reading a bunch of cases. For

(1) Impeccable and correct doctrine makes clear that a case "holds"with authority only so much of what the opinion says as is absolutely necessary to sustain the judgment. Anything else is unnecessary and "distinguishable" and noncontrolling for the future. Indeed, if the judgment rests on two, three or four rulings, any of them can be rightly and righteously knocked out, for the future, as being thus "unnecessary." Moreover, any …