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Full-Text Articles in Law
Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee
Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee
Georgetown Law Faculty Publications and Other Works
This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …