Legal History Commons^™

The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin

Michigan Law Review

The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

On The Incompatibility Of Political Virtue And Judicial Review: A Neo-Aristotelean Perspective, Ralph F. Gaebler

Articles by Maurer Faculty

Part I of this essay outlines a neo-Aristotelean theory of political virtue, an instance of virtue generally, that serves as the basis of excellent citizenship in the polis. As such, political virtue contributes its share to the achievement of eudaimonia, or the fulfillment of an individual’s natural, human function. In fact, political virtue is especially important because people are political beings, i.e. they seek the good most comprehensively in the context of association with others. Therefore, Aristotle describes politics as the master science of the supreme good, because politics orders the community of the polis and thereby establishes the norms …