What do some Reconstruction-Era civil rights laws, the first federal income tax, and various pieces of New Deal economic legislation have in common? These are all laws that the Supreme Court has held totally invalid after concluding that they were partially unconstitutional.
The doctrine through which the Supreme Court accomplished… Read More »
Mariano-Florentino Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency is both a work of history and a reminder of echoes of the past in contemporary policymaking. It compares the great post-9/11 bureaucratic reorganization, which created the Department of Homeland Security (DHS), with one great… Read More »
Constitutional scholars generally believe that the majority of the Supreme Court in The Slaughterhouse Cases erred in their narrow construction of the Privileges or Immunities Clause. Justice Samuel Miller’s attempt to distinguish the privileges and immunities of Article IV from the privileges or immunities of Section One is particularly vilified… Read More »
Americans listening to one of President Franklin Roosevelt’s fireside chats on a cabinet-sized radio in the late 1930s could not have imagined the eventual birth of the Internet technology used to disseminate this Article. They would have been hard pressed to imagine the spectacular growth of East Asian economies, or… Read More »
In 1970, Ruth Bader Ginsburg, soon-to-be head of the ACLU’s Women’s Rights Project (WRP), had a novel idea: She decided to challenge the constitutionality of sex-based state action by bringing cases featuring male plaintiffs. Up to that point, only women had brought sex discrimination claims under the Fourteenth Amendment. By… Read More »
In this Article, we propose that courts should make draft opinions available to the public for comment (typically by posting them on the Internet) before issuing them in final form. This proposal is not as wacky as it might first sound. A variant, in which draft opinions are distributed to… Read More »
Prior to the conference, the organizers asked me for my thoughts on how an anthropologist might approach the problem of studying judging. Those thoughts follow. I have subsequently reflected on the discussion at the conference itself, and I conclude this essay with those reflections.
When I think of “judging” as… Read More »
I.
Introduction: The Conflict over the Rule of Law
This symposium asks how we can quantify and evaluate what judges do. Some of the papers are skeptical of attempts at quantification. These questions are of importance to legal historians, who frequently seek to link judicial behavior to larger cultural, economic, and… Read More »
Samuel Adams, the Massachusetts patriot, was not enthusiastic about the newly proposed Constitution. He particularly did not like its introductory phrase, “We the People of the United States.” The phrase signaled a departure from the Articles of Confederation that the Constitution was to replace. The constituting authorities for the Articles… Read More »
Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies. This occurred, to some later scholars’ dismay, even after James Madison argued that the Senate was designed to provide “a due sense of national… Read More »