Scholars who grapple with the Rehnquist Court's activism understandably have relied on the work of those who grappled with the Warren Court's activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.
{"title":"Principled Minimalism: Restriking the Balance between Judicial Minimalism and Neutral Principles","authors":"Jonathan T. Molot","doi":"10.2307/1515648","DOIUrl":"https://doi.org/10.2307/1515648","url":null,"abstract":"Scholars who grapple with the Rehnquist Court's activism understandably have relied on the work of those who grappled with the Warren Court's activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1753"},"PeriodicalIF":2.6,"publicationDate":"2004-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515648","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68981178","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}
I. THE CONSTITUTION................................................................. 1266 II. THE WAR.................................................................................. 1271 III. THE ARMY ............................................................................... 1273 IV. THE DRAFT .............................................................................. 1277 V. ARMING THE SLAVES .............................................................. 1295 VI. PROCUREMENT ........................................................................ 1306 VII. INDIVIDUAL RIGHTS ............................................................... 1316 A. The Right to Travel......................................................... 1316 B. Church and State............................................................. 1317 C. Freedom of Expression .................................................. 1321 D. Habeas Corpus................................................................ 1326 E. Military Justice and Martial Law .................................. 1333 VIII.SEPARATION OF POWERS AND THE VETO............................. 1344 IX. MONEY ..................................................................................... 1358 X. STAMPS ..................................................................................... 1365 XI. THE MISSING SUPREME COURT ............................................. 1366 XII. MOPPING UP ............................................................................ 1377 A. Claims .............................................................................. 1377 B. Glancing Toward Parliament ........................................ 1380 C. Snippets............................................................................ 1384 D. Symbols ........................................................................... 1393 E. The End ........................................................................... 1396
当时为止THE CONSTITUTION .................................................................1266二世。《战争之王》 ..................................................................................1271三世。THE ARMY ...............................................................................1273四世。THE DRAFT ..............................................................................1277 V。ARMING THE SLAVES ..............................................................1295微型。PROCUREMENT ........................................................................1306七号。另外一件事就INDIVIDUAL ...............................................................1316 A。《好了大(foursquare .........................................................1316 b彻奇,and滨州 .............................................................自由与天主教》1317 c·Expression译本史》(英语) ..................................................1321。d Habeas Corpus ................................................................1326 e Military重温,and Martial阿劳 ..................................1333八世。SEPARATION拥有,AND THE VETO译本史》(英语) .............................1344九世。软件 .....................................................................................分到达x 1358 STAMPS .....................................................................................1365凯。THE MISSING出席会议讨歌德 .............................................1366六世。MOPPING -理查德 ............................................................................1377 A。Claims ..............................................................................1377 b Glancing Toward Parliament ........................................1380 c·Snippets ............................................................................1384。d Symbols ...........................................................................《外星人探索1393 e。 ...........................................................................1396
{"title":"Through the Looking-Glass: The Confederate Constitution in Congress, 1861-1865","authors":"David P. Currie","doi":"10.2307/3202380","DOIUrl":"https://doi.org/10.2307/3202380","url":null,"abstract":"I. THE CONSTITUTION................................................................. 1266 II. THE WAR.................................................................................. 1271 III. THE ARMY ............................................................................... 1273 IV. THE DRAFT .............................................................................. 1277 V. ARMING THE SLAVES .............................................................. 1295 VI. PROCUREMENT ........................................................................ 1306 VII. INDIVIDUAL RIGHTS ............................................................... 1316 A. The Right to Travel......................................................... 1316 B. Church and State............................................................. 1317 C. Freedom of Expression .................................................. 1321 D. Habeas Corpus................................................................ 1326 E. Military Justice and Martial Law .................................. 1333 VIII.SEPARATION OF POWERS AND THE VETO............................. 1344 IX. MONEY ..................................................................................... 1358 X. STAMPS ..................................................................................... 1365 XI. THE MISSING SUPREME COURT ............................................. 1366 XII. MOPPING UP ............................................................................ 1377 A. Claims .............................................................................. 1377 B. Glancing Toward Parliament ........................................ 1380 C. Snippets............................................................................ 1384 D. Symbols ........................................................................... 1393 E. The End ........................................................................... 1396","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1257"},"PeriodicalIF":2.6,"publicationDate":"2004-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202380","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038391","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":"Psychopathy and Responsibility","authors":"Charles Fischette","doi":"10.2307/3202382","DOIUrl":"https://doi.org/10.2307/3202382","url":null,"abstract":"","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1423"},"PeriodicalIF":2.6,"publicationDate":"2004-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202382","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038469","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}
ENERALLY, a line in the sand should not be crossed without considering the consequences. In Oregon, like most other states, the mean high tide line along the coast represented such a line, with private property on the upland side and public property toward the sea. In the case of State ex rel. Thornton v. Hay, however, the Oregon Supreme Court granted the public the right to cross that line for its enjoyment based on the English common law doctrine of custom, and, as a corollary, prohibited property owners from constructing any improvements on the dry sand beach between the mean high tide line and the vegetation line that might interfere with the public’s right of access. While the Oregon Supreme Court admitted that custom was doctrinally “unprecedented” in Oregon case law, the court looked to William Blackstone’s exposition of that doctrine and found, without any specific factual inquiry, that the entire Oregon coastline met the articulated requirements. Satisfied
一般来说，不考虑后果就不能越过底线。在俄勒冈州，像大多数其他州一样，沿着海岸的平均涨潮线代表了这样一条线，私人财产在高地一侧，公共财产朝向大海。然而，在“州ex . Thornton v. Hay”一案中，俄勒冈州最高法院根据英国习惯法的习惯原则，授予公众越过这条线享受的权利，并作为必然结果，禁止财产所有者在平均涨潮线和植被线之间的干沙滩上修建任何可能干扰公众进入权利的改进设施。虽然俄勒冈州最高法院承认，在俄勒冈州的判例法中，习惯在理论上是“史无前例的”，但法院参考了威廉·布莱克斯通(William Blackstone)对该原则的阐述，并在没有任何具体事实调查的情况下发现，俄勒冈州的整个海岸线都符合明确的要求。满意
{"title":"Judicial Takings and the Course Pursued","authors":"W. D. Sarratt","doi":"10.2307/3202383","DOIUrl":"https://doi.org/10.2307/3202383","url":null,"abstract":"ENERALLY, a line in the sand should not be crossed without considering the consequences. In Oregon, like most other states, the mean high tide line along the coast represented such a line, with private property on the upland side and public property toward the sea. In the case of State ex rel. Thornton v. Hay, however, the Oregon Supreme Court granted the public the right to cross that line for its enjoyment based on the English common law doctrine of custom, and, as a corollary, prohibited property owners from constructing any improvements on the dry sand beach between the mean high tide line and the vegetation line that might interfere with the public’s right of access. While the Oregon Supreme Court admitted that custom was doctrinally “unprecedented” in Oregon case law, the court looked to William Blackstone’s exposition of that doctrine and found, without any specific factual inquiry, that the entire Oregon coastline met the articulated requirements. Satisfied","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1487"},"PeriodicalIF":2.6,"publicationDate":"2004-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202383","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038522","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}
HEN a petit jury in a civil tort action awards damages for pain and suffering, it does not award damages that compensate, or that indemnify, or that provide restitution to the injured party—the traditional functions of damage awards. Damages that are awarded for pain and suffering are probably intended as a pecuniary bonus or gift in an amount thought roughly to reference the pain suffered or expected to be suffered. But there seem to be no rational, predictable criteria for measuring these damages. For that reason, there are also no criteria for reviewing pain and suffering awards by the presiding judge or by an appellate court. Without rational criteria for measuring damages for pain and suffering, awarding such damages undermines the tort law’s rationality and predictability—two essential values of the rule of law. Yet it is this irrationality in awarding money for pain and suffering that provides the grist for the mill of our tort industry, which is now estimated to have grown to $200 billion. It is difficult to dismiss an industry of this size as a small pocket of tolerable irrationality when it exceeds the entire economy of Turkey, or Austria, or Denmark.
{"title":"Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System","authors":"Paul v. Niemeyer","doi":"10.2307/3202381","DOIUrl":"https://doi.org/10.2307/3202381","url":null,"abstract":"HEN a petit jury in a civil tort action awards damages for pain and suffering, it does not award damages that compensate, or that indemnify, or that provide restitution to the injured party—the traditional functions of damage awards. Damages that are awarded for pain and suffering are probably intended as a pecuniary bonus or gift in an amount thought roughly to reference the pain suffered or expected to be suffered. But there seem to be no rational, predictable criteria for measuring these damages. For that reason, there are also no criteria for reviewing pain and suffering awards by the presiding judge or by an appellate court. Without rational criteria for measuring damages for pain and suffering, awarding such damages undermines the tort law’s rationality and predictability—two essential values of the rule of law. Yet it is this irrationality in awarding money for pain and suffering that provides the grist for the mill of our tort industry, which is now estimated to have grown to $200 billion. It is difficult to dismiss an industry of this size as a small pocket of tolerable irrationality when it exceeds the entire economy of Turkey, or Austria, or Denmark.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1401"},"PeriodicalIF":2.6,"publicationDate":"2004-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038453","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 standard account holds that trademark law, at its core, aims to protect consumers from deceptive and confusing uses of source-identifying marks. However, there is a problem with the standard account. It cannot explain a number of important trademark doctrines, many of which, like the protection accorded trade dress, have expanded the scope of trademark rights in recent years. Some critics argue that these puzzling doctrines reflect a radical shift away from the standard account and toward a new property theory of trademark law that focuses not so much on the quality of information available to consumers as on the seller's ability to appropriate the full commercial value of its mark. This Article offers a different, and less alarming, explanation for many of the puzzling doctrines, one that does not require a radical departure from the standard account. This alternative explanation focuses on the enforcement costs of implementing law based on the standard account. Enforcement costs include the administrative costs of adjudicating trademark lawsuits and the error costs of over- and under-enforcing trademark rights. For a number of reasons, trademark law generates high enforcement costs, and many of the puzzling features of trademark doctrine can be understood as legal tools to manage these high costs. In particular, courts adopt general rules or standards that protect trademarks more broadly than the standard account's substantive policies support, but those rules and standards can be justified by the administrative and error costs they save. In the end, the Article uses the enforcement cost approach to suggest two reforms to trademark law - the broader acceptance of disclaimers especially in merchandising rights cases, and the abolition of trade dress protection.
{"title":"Enforcement Costs and Trademark Puzzles","authors":"R. Bone","doi":"10.2307/1515642","DOIUrl":"https://doi.org/10.2307/1515642","url":null,"abstract":"The standard account holds that trademark law, at its core, aims to protect consumers from deceptive and confusing uses of source-identifying marks. However, there is a problem with the standard account. It cannot explain a number of important trademark doctrines, many of which, like the protection accorded trade dress, have expanded the scope of trademark rights in recent years. Some critics argue that these puzzling doctrines reflect a radical shift away from the standard account and toward a new property theory of trademark law that focuses not so much on the quality of information available to consumers as on the seller's ability to appropriate the full commercial value of its mark. This Article offers a different, and less alarming, explanation for many of the puzzling doctrines, one that does not require a radical departure from the standard account. This alternative explanation focuses on the enforcement costs of implementing law based on the standard account. Enforcement costs include the administrative costs of adjudicating trademark lawsuits and the error costs of over- and under-enforcing trademark rights. For a number of reasons, trademark law generates high enforcement costs, and many of the puzzling features of trademark doctrine can be understood as legal tools to manage these high costs. In particular, courts adopt general rules or standards that protect trademarks more broadly than the standard account's substantive policies support, but those rules and standards can be justified by the administrative and error costs they save. In the end, the Article uses the enforcement cost approach to suggest two reforms to trademark law - the broader acceptance of disclaimers especially in merchandising rights cases, and the abolition of trade dress protection.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"2099"},"PeriodicalIF":2.6,"publicationDate":"2004-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515642","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980426","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}
This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and fine-tunes this Blackstonian package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated calls for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of Rule 4 liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter's damages. Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.
{"title":"Exclusion and Property Rules in the Law of Nuisance","authors":"Henry E. Smith","doi":"10.2307/3202415","DOIUrl":"https://doi.org/10.2307/3202415","url":null,"abstract":"This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and fine-tunes this Blackstonian package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated calls for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of Rule 4 liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter's damages. Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"965"},"PeriodicalIF":2.6,"publicationDate":"2004-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202415","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038844","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}
Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments. There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together. These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play. Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.
{"title":"Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds","authors":"J. Balkin","doi":"10.2307/1515641","DOIUrl":"https://doi.org/10.2307/1515641","url":null,"abstract":"Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments. There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together. These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play. Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"2043"},"PeriodicalIF":2.6,"publicationDate":"2004-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515641","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980367","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}
This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time. Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.
{"title":"What Brown Teaches Us About Constitutional Theory","authors":"J. Balkin","doi":"10.2307/3202404","DOIUrl":"https://doi.org/10.2307/3202404","url":null,"abstract":"This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time. Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1537"},"PeriodicalIF":2.6,"publicationDate":"2004-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039072","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 notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either nave or dogmatic. Because nineteenth-century American legal theorists did describe law as a science, some modern scholars have interpreted nineteenth-century "legal science" as an attempt by a legal elite to obscure the inherently political nature of legal doctrine. Other scholars have defended the ability of legal reasoning to yield necessary and certain conclusions, but both groups of scholars assume that achieving legal certainty was the goal of legal science and disagree only as to whether such a goal was intellectually justified. This Note challenges that assumption by suggesting that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. These theorists conceived of themselves as legal scientists because they believed they could discover legal principles through the same inductive, empirical methods that yielded discoveries in the natural sciences.
{"title":"Common Sense and Legal Science","authors":"Charles L. Barzun","doi":"10.2307/3202416","DOIUrl":"https://doi.org/10.2307/3202416","url":null,"abstract":"The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either nave or dogmatic. Because nineteenth-century American legal theorists did describe law as a science, some modern scholars have interpreted nineteenth-century \"legal science\" as an attempt by a legal elite to obscure the inherently political nature of legal doctrine. Other scholars have defended the ability of legal reasoning to yield necessary and certain conclusions, but both groups of scholars assume that achieving legal certainty was the goal of legal science and disagree only as to whether such a goal was intellectually justified. This Note challenges that assumption by suggesting that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. These theorists conceived of themselves as legal scientists because they believed they could discover legal principles through the same inductive, empirical methods that yielded discoveries in the natural sciences.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1051"},"PeriodicalIF":2.6,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202416","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038887","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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