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Articles 1 - 5 of 5
Full-Text Articles in Law
Textualism, The Unknown Ideal?, William N. Eskridge Jr.
Textualism, The Unknown Ideal?, William N. Eskridge Jr.
Michigan Law Review
In May 1997, the New York Knickerbockers basketball team was poised to reach the finals of its division in the National Basketball Association (NBA). The Knicks led the rival Miami Heat by three games to two and needed one more victory to win the best-of seven semifinal playoff series. Game six would be in New York; with their star center, Patrick Ewing, playing well, victory seemed assured for the Knicks. A fracas during game five changed the odds. During a fight under the basket between Knicks and Heat players, Ewing left the bench and paced in the middle of the …
Textualism And Judgment, Suzanna Sherry
Textualism And Judgment, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …
United States V. O'Hagan: The Supreme Court Abandons Textualism To Adopt The Misappropriation Theory, Amy E. Fahey
United States V. O'Hagan: The Supreme Court Abandons Textualism To Adopt The Misappropriation Theory, Amy E. Fahey
Fordham Urban Law Journal
This article analyzes the Supreme Courts ruling in United States v. O'Hagen holding that Section 10(b) of the Securities and Exchange Act can be applied to insider trading by corporate outsiders. The article argues that the Supreme Court incorrectly expanded the reach of the statute beyond that which Congress had intended.
Translation Without Fidelity: A Response To Richard Epstein’S Fidelity Without Translation, William Michael Treanor
Translation Without Fidelity: A Response To Richard Epstein’S Fidelity Without Translation, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
This article is a response to Fidelity Without Translation by Richard Epstein (1997).
Explaining why a body of work is influential is inevitably a complex matter, but part of the success of Professor Epstein’s writings undoubtedly stems from their grounding in the original understanding of the Constitution. He has claimed the mantle of the framers, and that claim gives his reading of the takings clause a deep resonance it would not otherwise have.
Explicitly rejecting Epstein’s reading of the clause and the history that lay behind its adoption, the author has previously advanced his own view of the original understanding …
Translating Federalism: A Textualist Reaction, Gregory E. Maggs
Translating Federalism: A Textualist Reaction, Gregory E. Maggs
GW Law Faculty Publications & Other Works
In his rich and important article, Translating Federalism: United States v Lopez, Professor Lawrence Lessig advances two ambitious and provocative claims. Lessig first asserts that the Supreme Court has sought to control the expansion of federal power by "translating" the Commerce Clause instead of following the Clause's textual meaning. Second, Lessig proclaims that, as a normative matter, the Supreme Court should engage actively in this type of translation. In his view, the Court shows greater fidelity to the Constitution by reading it in ways that preserve the document's original function than the Court exhibits by strictly following the document's text. …