Harvard Journal of Law & Public Policy articles from June 2008

Harvard Journal of Law & Public Policy archives from June 2008

Pragmatism's role in interpretation.
June 22, 2008... Although the title of this panel is in the conjunctive--Originalism and Pragmatism--people usually assume that we must choose originalism or pragmatism. Pragmatists, such as Justice Breyer and Judge Posner, think it both wise and appropriate to...

Two (more) problems with originalism.
June 22, 2008... In this Essay, I wish to offer two simple points. The first is that originalist arguments misconstrue history, and the second is that there is no such thing as pragmatic originalism--to the contrary, originalism is by definition unpragmatic and...

A pragmatic defense of originalism.
June 22, 2008... Originalism and pragmatism are uneasy companions. This Essay will attempt to make them friends. The usual view is that pragmatic interpretation has the essential virtue of ensuring that the consequences of legal decisions will be good. (1)...

Originalism and pragmatism: false friends.
June 22, 2008... The idea that either pragmatism or originalism can restrain judges meaningfully in hard cases is illusory. Professors McGinnis and Rappaport have suggested that pragmatism and originalism should be thought of as friends. (1) The friendship they...

Text vs. precedent in constitutional law.
June 22, 2008... Conservative constitutional law scholarship is divided into two camps. First, there are the originalists and textualists like myself, Randy Barnett, John Harrison, Gary Lawson, Judge Michael McConnell, Michael Stokes Paulsen, Saikrishna...

On text and precedent.
June 22, 2008... Until recently, the conversation on originalism and the role of precedent has been dominated by two main camps, which I will call unoriginal originalists and unprecedented precedentialists. Unoriginal originalists refers to people who purport...

Why conservatives shouldn't be originalists.
June 22, 2008... The revival of originalism in the last generation has been, for the most part, the work of conservatives. That makes it easy to think that originalism and legal conservatism are natural allies. But in fact the alliance is an alliance of...

The conservative case for precedent.
June 22, 2008... This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally....

Resisting the ratchet.
June 22, 2008... Descending for a moment from the rarefied atmosphere of our panel's discussion of the United States Supreme Court, I would like to offer several perspectives on the role of precedent from my vantage point as a Justice of the Michigan Supreme...

A government of adequate powers.
June 22, 2008... I am about to commit an act of unmitigated blasphemy for a Federalist Society member: I am about to attack most Federalist Society members' views of federalism. So, first let me establish my credentials: I am most liberals' nightmare...

The choice between Madison and FDR.(former American presidents James Madison, Franklin D. Roosevelt)
June 22, 2008... This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least...

Paper money and the original understanding of the coinage clause.
June 22, 2008... "The Congress shall have Power... To coin Money, regulate the Value thereof, and of foreign Coin...." --Constitution of the United States (1) "Poor? Look upon his face. What call you rich? Let them coin his nose, let them coin his...

The original meaning of the free exercise clause: the evidence from the First Congress.
June 22, 2008... Despite the vast quantity of research devoted to understanding religion and the American Founding, the original meaning of the First Amendment's Free Exercise Clause remains a matter of significant dispute. In academic literature and in Supreme...

Thinking about originalism.
June 22, 2008... If the Federalist Society is associated with a single word, it is "originalism." Although well-known for its noble efforts to encourage freedom of thought and debate in law schools (and among lawyers), the Society's own thoughts and debates...

Constituting the Constitution: understanding the American Constitution through the British cultural Constitution.
June 22, 2008... Reference is often made to the legal philosophical, and historical progenitors of the American Constitution in ideas derived from Great Britain, such as the writings of John Locke or William Blackstone, and familiar documents like the Magna...

Politics, constitutional interpretation, and media ecology: an argument against judicial minimalism.
June 22, 2008... INTRODUCTION There is a venerable tradition of judicial humility in American constitutional law. The modern conception of judicial restraint (1) can be traced back to an article written by Professor James Bradley Thayer in 1893. (2)...

Reconceptualizing split-recovery statutes: Philip Morris USA v. Williams.
June 22, 2008... Many believe that punitive damage awards have spiraled out of control. In 2002, a California jury awarded $28 billion in punitive damages to a 64-year-old woman with lung cancer. (1) In 2000, a Florida jury awarded $145 billion in punitive...

Playing lawyers: the implications of endowing parents with substantive rights under IDEA in Winkelman v. Parma City School District.(Individuals with Disabilities Education Act)
June 22, 2008... Congress has long struggled with how best to protect the educational interests of children with disabilities. (1) The Individuals with Disabilities Education Act (IDEA) (2) seeks to prevent discrimination against children with disabilities and...

Avoiding Mead: the problem with unanimity in Long Island Care at Home, Ltd. v. Coke.
June 22, 2008... One of the central questions in administrative law is the appropriate level of deference courts should give to agency interpretations of statutorily conferred authority. The Supreme Court announced its most recent major doctrinal development in...

No taxation without separation: the Supreme Court passes on an opportunity to end establishment clause exceptionalism: Hein v. Freedom from Religion Foundation, Inc.
June 22, 2008... The Supreme Court generally denies plaintiffs standing to challenge the constitutionality of government expenditures if their only basis for standing is that they pay taxes. (1) The Court, however, has created one exception: for taxpayers...