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Full-Text Articles in Law
"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers
"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers
Law Faculty Scholarly Articles
Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …
The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West
The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West
Georgetown Law Faculty Publications and Other Works
What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …
Fourth, Fifth, And Sixth Amendments, William E. Hellerstein
Fourth, Fifth, And Sixth Amendments, William E. Hellerstein
Touro Law Review
No abstract provided.
The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen M. Feldman
The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen M. Feldman
Stephen M. Feldman
A debate between realists and antirealists has characterized western metaphysics. While metaphysical realists ground existence on an objective world, antirealists ground existence on a thinking subject and human culture. The argument in jurisprudence, as elsewhere, is that either we are capable of objective knowledge or we are doomed to free-floating subjectivism. We demand the impossible -- absolute objectivity -- to avoid the catastrophic -- unconstrained subjectivity. The interpretive turn attempts to move beyond this insoluble dilemma, the either/or of objectivity and subjectivity. Thus, in jurisprudence, the interpretive turn is well worth taking if only because it offers the possibility of …
Mr. Justice Antonin Scalia: A Renaissance Of Positivism And Predictability In Constitutional Adjudication, Beau James Brock
Mr. Justice Antonin Scalia: A Renaissance Of Positivism And Predictability In Constitutional Adjudication, Beau James Brock
Beau James Brock
This article pinpoints Justice Scalia's judicial methodology and contrasts it with the pragmatism of Justice Sandra Day O'Connor.