Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law—and what if...
Book Review
Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology.
Next, the...
Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme...
Gregory Ablavsky’s Federal Ground explains how the national government and American law were transformed in the federal territories that compose modern Ohio and Tennessee. Ablavsky’s careful research and fresh perspective will make his work a vital reference for historians, but this Book Review also highlights the book’s significance for legal academics and lawyers. Ablavsky has collected extraordinary evidence about property...
In Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law, Dov Fox schematizes the concept of “reproductive negligence” (also called “reproductive wrongs”) into three categories: procreation imposed, procreation deprived, and procreation confounded. This Book Review aims to extend Fox’s analysis by looking beyond the law of torts, which is Fox’s primary focus. This Review observes that...
During her twenty-five-year tenure on the Supreme Court, Justice Sandra Day O’Connor became one of the most admired figures in American public life. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. In this Book Review, a former O’Connor clerk describes a legacy in three parts: a lived example of how to thrive in...
Contemporary scholarship and jurisprudence concerning the Constitution’s separation of powers is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation of powers system as abiding in a stable equilibrium or as enthralled by transformative...
In Reading Law, Justice Scalia and his coauthor, Professor Bryan Garner, promise that text-based statutory interpretation can be rendered more predictable and constraining if 57 “valid canons” are followed. Admiring the enterprise, this Review maintains that this regime would not solve the problems of unpredictability or judicial policymaking Reading Law identifies. For any difficult case, there will be as many as twelve to fifteen relevant...