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2003

Jurisprudence

Michigan Law Review

Articles 1 - 7 of 7

Full-Text Articles in Law

Appellate Courts Inside And Out, Maxwell L. Stearns May 2003

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last word." …

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The Unruliness Of Rules, Peter A. Alces May 2003

The Unruliness Of Rules, Peter A. Alces

Michigan Law Review

Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory - indeed, before we can even know what those questions are - we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That …

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The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan May 2003

The Politicization Of Clarence Thomas, Jagan Nicholas Ranjan

Michigan Law Review

Perception often shapes memory. In particular, the way one perceives a noteworthy public figure often shapes that figure's historical legacy. For example, history largely remembers John Coltrane as one of the greatest jazz saxophone players of our time. His improvisational skill, innovative style, and mastery over his instrument all serve to classify him in the public memory as the ultimate jazz performer. Yet, as the example of Coltrane might demonstrate, perception is unjustly deficient. Coltrane was not merely a great saxophone player; he was first and foremost a religious figure whose spirituality drove his creativity and manifested itself in prayerful …

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Meaning's Edge, Love's Priority, Patrick Mckinley Brennan May 2003

Meaning's Edge, Love's Priority, Patrick Mckinley Brennan

Michigan Law Review

The story is told of an American wending his way through the British Museum. Reaching the Rosetta Stone, he reached right over the railing, touched the scarred slab, and lamented: "It doesn't feel meaningful." Whereupon an old Briton was heard to mumble: "The poor American's got this old thing confused with the Blarney Stone." A bully presses his case, but meaning is much more modest. Powerless to insist upon itself, meaning lies in wait of discovery. What distinguishes the Rosetta Stone from other rocks of the same kind and size is that it was someone's - or rather a group's …

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Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule Feb 2003

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …

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Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner Feb 2003

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Michigan Law Review

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better …

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Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule Feb 2003

Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule

Michigan Law Review

In law, problems of interpretation can be explored at different levels of generality. At the most specific level, people might urge that the Equal Protection Clause forbids affirmative action, or that the Food and Drug Act applies to tobacco products. At a higher level of generality, people might argue that the Equal Protection Clause should be interpreted in accordance with the original understanding of its ratifiers, or that the meaning of the Food and Drug Act should be settled with careful attention to its legislative history. At a still higher level of generality, people might identify the considerations that bear …

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