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Full-Text Articles in Law
Debating Is The Constitution Special?, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe
Debating Is The Constitution Special?, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe
Articles
In 1890, Louis Brandeis wrote The Right to Privacy. Within a matter of years, the courts began adopting his theory, creating a newly articulated legal right. This article likely represented the high-water mark of legal academia in terms of real world impact. In recent years, the academy has lost much of its relevance. Chief Justice Roberts ridiculed academic work, suggesting that legal scholarship has become esoteric and irrelevant. This should not be the case. The quality of legal scholars is higher than it has ever been—young scholars now often enter the academy with doctoral degrees in related fields. Likewise, technology …
The Gibbons Fallacy, Richard A. Primus
The Gibbons Fallacy, Richard A. Primus
Articles
In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …
The Inference From Authority To Interpretive Method In Constitutional And Statutory Domains, Kevin M. Stack
The Inference From Authority To Interpretive Method In Constitutional And Statutory Domains, Kevin M. Stack
Vanderbilt Law School Faculty Publications
Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation as largely overlapping, continuous, or converging. For some, this overlap follows directly from the Constitution's status as a form of legislated law. In this way of thinking, because the Constitution, like a statute, was bargained over and formally adopted, it should be interpreted in accordance with general principles applicable to legislated law. Proponents of this view argue that if constitutional interpretation appears distinctive in practice, that is …
The Constitutional Ratchet Effect, Kevin M. Stack
The Constitutional Ratchet Effect, Kevin M. Stack
Vanderbilt Law School Faculty Publications
No abstract provided.
Conservatives And The Court, Robert F. Nagel
Fidelity To Our Imperfect Constitution: A Response To Five Views, James E. Fleming
Fidelity To Our Imperfect Constitution: A Response To Five Views, James E. Fleming
Faculty Scholarship
En mi libro reciente, Fidelity to Our Imperfect Constitution, adelanto una crí-tica sostenida al originalismo en todas sus formas y defiendo tanto lo que Ronald Dworkin llamó una “lectura moral” de la Constitución de los Estados Unidos de América como lo que, junto a Sotirios A. Barber, he llamado una “aproximación filosófica” a la interpretación constitucional. En este ensayo para el Simposio sobre el libro, respondo a cinco comentarios muy pensa-dos. Primero, en contra del comentario de Sot Barber, justifico el responder a la “resurgencia persistente del originalismo” y el tratar de “salvar al ori-ginalismo nuevo de sí mismo” al …