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Articles 1 - 4 of 4
Full-Text Articles in Law
The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning
The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning
Brannon P. Denning
This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning--the usual focus of constitutional theory--and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in …
Heller's Future In The Lower Courts, Brannon P. Denning, Glenn H. Reynolds
Heller's Future In The Lower Courts, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
In this article, written shortly after the Heller decision, Glenn Reynolds and I speculate whether lower courts will implement Heller vigorously or, as happened with the Court's Commerce Clause cases, Lopez and Morrison, will render it largely a symbolic victory. While we note similarities between the Commerce Clause cases and Heller, we suggest important differences as well, that might make lower court resistance less likely.
Five Takes On District Of Columbia V. Heller, Brannon P. Denning, Glenn H. Reynolds
Five Takes On District Of Columbia V. Heller, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
This paper, written for a symposium in the Ohio State Law Journal, offers five different takes on various aspects of the Heller decision.
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning
Brannon P. Denning
This article argues that the historic incoherence of the dormant Commerce Clause doctrine reflects the Court's perpetual creation and discarding of decision rules designed to implement a constitutional command that had never been clarified. Drawing on the work of Mitch Berman and Kim Roosevelt, I articulate a constitutional command--prohibition of interstate commerce likely to destabilize political union--derived from the Constitution, then suggest decision rules that would implement that command. While some of my conclusions map onto current doctrine, I recommend that the Court abandon so-called "balancing" since it does not make sense as a decision rule, given the constitutional command …