Are “canons of construction” embarrassing? For a long time, the answer was “yes.” Exposed as “contradictory” by Karl Llewellyn, a generation of legal thinkers understood interpretive canons to be so malleable in their application as to operate mostly as pretext. Rather than bring predictability to statutory decisions, the availability of more than one interpretive canon in nearly any appellate case meant that a canon’s invocation worked mostly to obscure the choice (conscious or not) by judges between legally permissible outcomes. Interpretive canons were thus tools of legalmystification, providing the appearance of law towhat were, ultimately, acts of discretion.
{"title":"Late-Stage Textualism","authors":"R. Doerfler","doi":"10.1086/719651","DOIUrl":"https://doi.org/10.1086/719651","url":null,"abstract":"Are “canons of construction” embarrassing? For a long time, the answer was “yes.” Exposed as “contradictory” by Karl Llewellyn, a generation of legal thinkers understood interpretive canons to be so malleable in their application as to operate mostly as pretext. Rather than bring predictability to statutory decisions, the availability of more than one interpretive canon in nearly any appellate case meant that a canon’s invocation worked mostly to obscure the choice (conscious or not) by judges between legally permissible outcomes. Interpretive canons were thus tools of legalmystification, providing the appearance of law towhat were, ultimately, acts of discretion.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"267 - 313"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42182897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The biggest news of October Term 2020 was what didn’t happen: In the run-up to, and aftermath of, yet another tight and hard-fought presidential election, the Supreme Court declined to double down on some of the worst aspects of the execrable Bush v. Gore opinions of twenty years ago. But a close look at the Term reveals that there was a brief moment of genuine constitutional peril, a week when it seemed quite possible that the Court might once again—as it did in 2000—besmirch itself and plunge the country into a jurisprudential abyss. In the days preceding the election of 2020, a veritable carnival of litigants—let’s call them Bush-Leaguers—teed up several cases based on a seemingly plausible but ultimately preposterous constitutional
{"title":"Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish","authors":"V. Amar, A. Amar","doi":"10.1086/720128","DOIUrl":"https://doi.org/10.1086/720128","url":null,"abstract":"The biggest news of October Term 2020 was what didn’t happen: In the run-up to, and aftermath of, yet another tight and hard-fought presidential election, the Supreme Court declined to double down on some of the worst aspects of the execrable Bush v. Gore opinions of twenty years ago. But a close look at the Term reveals that there was a brief moment of genuine constitutional peril, a week when it seemed quite possible that the Court might once again—as it did in 2000—besmirch itself and plunge the country into a jurisprudential abyss. In the days preceding the election of 2020, a veritable carnival of litigants—let’s call them Bush-Leaguers—teed up several cases based on a seemingly plausible but ultimately preposterous constitutional","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"1 - 51"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48371978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It was a few minutes after 10 a.m. on October 9, 2002, a brisk Wednesday morning inWashington, D.C. Some of the crowd that had begun lining up outside the Court before daybreak to hear oral argument had successfully obtained seats in the visitor’s gallery, where they now waited with great anticipation for the Court to call its first case. In short order, Chief Justice Rehnquist announced that the Court was ready to hear arguments in the case of Eldred v. Ashcroft, and Professor Lawrence Lessig began presenting the case for the petitioner, arguing that the Sonny Bono Copyright Term Extension Act (CTEA) was an unconstitutional exercise of Congress’s lawmaking power.
{"title":"The Institutionalist Turn In Copyright","authors":"Shyamkrishna Balganesh","doi":"10.1086/719042","DOIUrl":"https://doi.org/10.1086/719042","url":null,"abstract":"It was a few minutes after 10 a.m. on October 9, 2002, a brisk Wednesday morning inWashington, D.C. Some of the crowd that had begun lining up outside the Court before daybreak to hear oral argument had successfully obtained seats in the visitor’s gallery, where they now waited with great anticipation for the Court to call its first case. In short order, Chief Justice Rehnquist announced that the Court was ready to hear arguments in the case of Eldred v. Ashcroft, and Professor Lawrence Lessig began presenting the case for the petitioner, arguing that the Sonny Bono Copyright Term Extension Act (CTEA) was an unconstitutional exercise of Congress’s lawmaking power.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"417 - 472"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45195218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Blackstone famously declared: “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” That seems to be so, if not for all “mankind,” then at least for the current majority of the Supreme Court. In the modern era, the deregulatory impact of property rights and takings law has been blunted by the dominant role of ad hoc balancing. Advocates, scholars, and judges seeking to sharpen the takings challenge to regulation have thus focused their efforts on creating and expanding “per se rules” that circumvent the default regime of balancing. So perhaps it should be no surprise that the first major takings case decided by the lopsidedly conservative Supreme Court that took the bench in 2020 produced a resounding victory for private property
{"title":"Showdown at Cedar Point: “Sole and Despotic Dominion” Gains Ground","authors":"C. Estlund","doi":"10.1086/720149","DOIUrl":"https://doi.org/10.1086/720149","url":null,"abstract":"Blackstone famously declared: “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” That seems to be so, if not for all “mankind,” then at least for the current majority of the Supreme Court. In the modern era, the deregulatory impact of property rights and takings law has been blunted by the dominant role of ad hoc balancing. Advocates, scholars, and judges seeking to sharpen the takings challenge to regulation have thus focused their efforts on creating and expanding “per se rules” that circumvent the default regime of balancing. So perhaps it should be no surprise that the first major takings case decided by the lopsidedly conservative Supreme Court that took the bench in 2020 produced a resounding victory for private property","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"125 - 154"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46630619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Rigour Required: Recent Direction from the Supreme Court of Canada on Binding and Non-Binding Sources of International Law in Charter Interpretation","authors":"R. Amarnath, C. Harris","doi":"10.60082/2563-8505.1429","DOIUrl":"https://doi.org/10.60082/2563-8505.1429","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"1 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90942195","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Plumber with Words: Seeking Constitutional Responsibility and an End to the Little Sisters Problem","authors":"A. Latimer, Benjamin L. Berger","doi":"10.60082/2563-8505.1430","DOIUrl":"https://doi.org/10.60082/2563-8505.1430","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"175 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77262841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Safety, Health, and Union Access in Cedar Point Nursery","authors":"B. Sachs","doi":"10.1086/720408","DOIUrl":"https://doi.org/10.1086/720408","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"99 - 123"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49514273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Touch of Evil: Disagreements at the Heart of the Criminal Law Power","authors":"E. Adams","doi":"10.60082/2563-8505.1426","DOIUrl":"https://doi.org/10.60082/2563-8505.1426","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"1 1","pages":""},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75638325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Fulton v. City of Philadelphia, the SupremeCourt extended a recent trend of invalidating the application of antidiscrimination rules that protected LGBTQ people, stating that such applications violated the First Amendment’s FreeExerciseClause. In 2018, theCourt ruled for an evangelical baker who said that the application of a state antidiscrimination law to his refusal to bake a cake to celebrate the union of a gay couple violated his free exercise right. In these two recent cases, the Court expressed rhetorical support for LGBTQ people’s interest in equal treatment. The holding in each case, however, privileged the asserted free exercise right over the competing equality interest. At
在富尔顿诉费城市案(Fulton v. City of Philadelphia)中，最高法院延续了最近的一种趋势，即废除保护LGBTQ人群的反歧视规则的应用，称这种应用违反了第一修正案的自由行使条款。2018年，法院对一名福音派面包师做出了判决，他说，州反歧视法适用于他拒绝为一对同性恋夫妇烤蛋糕庆祝的行为侵犯了他的自由行使权。在最近的两起案件中，最高法院对LGBTQ群体要求平等待遇的诉求表示了口头上的支持。然而，在每一个案件的判决中，所主张的自由行使权利都优先于与之竞争的平等利益。在
{"title":"What Christianity Loses When Conservative Christians Win at The Supreme Court","authors":"Russell K. Robinson","doi":"10.1086/719566","DOIUrl":"https://doi.org/10.1086/719566","url":null,"abstract":"In Fulton v. City of Philadelphia, the SupremeCourt extended a recent trend of invalidating the application of antidiscrimination rules that protected LGBTQ people, stating that such applications violated the First Amendment’s FreeExerciseClause. In 2018, theCourt ruled for an evangelical baker who said that the application of a state antidiscrimination law to his refusal to bake a cake to celebrate the union of a gay couple violated his free exercise right. In these two recent cases, the Court expressed rhetorical support for LGBTQ people’s interest in equal treatment. The holding in each case, however, privileged the asserted free exercise right over the competing equality interest. At","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":"2021 1","pages":"185 - 224"},"PeriodicalIF":2.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47322378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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