Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is… Read More »
The Supreme Court is frequently accused of declaring laws unconstitutional based on little more than the justices’ ideological preferences. This is an especially common criticism of the Court’s capital-punishment, equal-protection, and substantive-due-process jurisprudence, where the justices have made little effort to tie their decisions to anything resembling a neutral principle.
In… Read More »
Constitutional interpretation looks to the past: to an old text, to old precedents, to the views of the founding generations, to tradition. That is the conventional wisdom, at least. Judicial review, as it’s usually conceived, is a matter of using principles rooted in these sources to limit current popular majorities.… Read More »
Textualism is a “conservative” method of statutory interpretation, according to the conventional wisdom. For example, Bradford Mank rejects the suggestion that textualism can be friendly to environmental regulation, noting that “textualists tend to devalue the policy balances struck by environmental agencies… Read More »