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After the Realist Revolution: Judicial Lawmaking in an Age of Instrumentalist Common Law Jurisprudence
No full textAfter the Realist Revolution extends the existing academic study of American common law into new and previously unexplored areas. The author examines the conventional understanding of appellate court lawmaking and the profound change in the common understanding of that activity that occurred during the mid-twentieth century. The author argues that this change in the conventional account of common law can be best understood as an authentic paradigm shift, akin to those described by Thomas Kuhn in The Structure of Scientific Revolutions. The book also sheds light on the ways in which the current instrumentalist approach to appellate court lawmaking is influenced and, in some respects, compromised by the structures and procedures that were created during the prior formalist era. Thorough and insightful, After the Realist Revolution is an ideal resource for legal scholars and general readers interested in the nature and evolution of American common law.https://scholarship.law.edu/fac_books/1151/thumbnail.jp
Modalities, Anti-Modalities, and the Social Psychology of Persuasive Constitutional Argument
Full text linkConstitutional argumentation traditionally relies on modalities such as text, history, doctrine, and structure. However, the exclusion of certain “anti-modalities”—such as policy arguments, fundamentalist views, and emotional appeals—can create a “resonance gap” between legal reasoning and public understanding. This paper explores how social science insights, particularly from cultural cognition theory (CCT) and moral foundations theory (MFT), can help bridge this gap by guiding the strategic incorporation of pathos and moral intuitions into constitutional arguments. Techniques such as self-affirmation, expressive overdetermination, and aporetic reasoning can make opinions more persuasive and inclusive without compromising legal integrity. The paper examines how these strategies can enhance arguments within accepted modalities and potentially address underlying concerns driving the appeal of anti-modalities. Connecting these approaches to Chief Justice Roberts’ emphasis on institutional legitimacy, the paper argues that attending to social psychological dynamics can help the Supreme Court maintain its authority while speaking to a pluralistic nation
The Natural Law Moment in Constitutional Theory
Full text linkSomething new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024
We Need to Talk
Full text link[Writing] will introduce forgetfulness into the soul of those who learn it: they will not practice using their memory because they will put their trust in writing, which is external and depends on signs that belong to others, instead of trying to remember from the inside, completely on their own. You have not discovered a potion for remembering, but for reminding; you provide your students with the appearance of wisdom, not with its reality. Your invention [of written language] will enable them to hear many things without being properly taught, and they will imagine that they have come to know much while for the most part they will know nothing.[1]
Socrates routinely expressed complete contempt for written language. In fact, putting this article in writing feels like a betrayal of Socrates and his scholarly expectation that wisdom was best demonstrated through oral discourse. Although law school professors employ the Socratic teaching method, they reject the reasoning behind his methods. Students may receive participation credit for classroom discussions, but law school grades are primarily assigned based on written answers to assessment questions. Historically “the traditional – and sole – law school method for student learning assessment in a doctrinal course was a single, written comprehensive final examination.”[2] Even as more frequent assessments become common, faculty in doctrinal classes continue to award grades based primarily on written examinations.
Socrates would have disdained such an approach to discerning wisdom. Displaying knowledge during oral discourse would be far more relevant to his determination of student achievement.
[1] Socrates did not write down the contempt he expressed for written language, a contempt that he would likely also apply to law school written examinations. Instead, his student, Plato (428-347 BCE), memorialized Socrates’ disdain. Mary Kalantzis & Bill Cope, Socrates on the Forgetfulness that Comes with Writing, newlearningonline: Literacies on a Human Scale, https://newlearningonline.com/literacies/chapter-1/socrates-on-the-forgetfulness-that-comes-with-writing (quoting Plato: Phaedrus, in Plato: Complete Works 551-552 (John M. Cooper & D.S. Hutchison eds., G. M. A. Grube trans., Hackett Pub. 1997) [https://perma.cc/N797-3ENE].
[2] Joan MacLeod Heminway, Teaching Business Associations with Group Oral Midterms: Benefits and Drawbacks, 59 St. Louis U. L.J. 863, 864 (2015)
The President’s Authority to Impose Tariffs
Full text linkThe International Emergency Economic Powers Act (“IEEPA”) empowers the President to “regulate . . . importation.” In Learning Resources v. Trump, the United States District Court for the District of Columbia ruled that such language did not empower the President to impose tariffs. The District Court reasoned that there was a distinction between the power to “regulate” and the power to “tax,” and that tariffs required a power to tax. This Essay explains why the District Court was wrong.
The Constitution’s original meaning and Supreme Court precedent indicate that tariffs can be an exercise of Congress’s power to regulate foreign commerce, not just an exercise of Congress’s power to tax. Thus, by empowering the President to “regulate . . . importation,” IEEPA empowers the President to regulate importation through a traditional and familiar means: tariffs.
What’s more, although IEEPA delegates broad tariff authority to the President, the delegation does not run afoul of the nondelegation doctrine; that doctrine recognizes that Congress may delegate more freely in the foreign affairs context. Nor does the delegation run afoul of the major questions doctrine, given that the President is not claiming “unheralded” powers. Congress has delegated foreign import authority to the President for over two-hundred years, and the statutory language in IEEPA has been understood as delegating tariff authority for the last fifty years
Charitable Giving and Civil Rights: A Defense of Private Remedial Action
No full textPrivate charitable organizations have long enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking race, ethnicity, gender, and other traits into account when responding to the harmful effects of past discrimination, a practice this Feature terms “private remedial action.” The legality of this kind of trait-conscious assistance is strongly supported by the early American history of trait-based associations, federal tax law, and core values of free association. However, new legal and political attacks on affirmative action of all types have put charities on the defensive, leading many groups to change their programs and behavior even when the law is on their side. In one notable decision, American Alliance for Equal Rights v. Fearless Fund, a divided Eleventh Circuit panel forced a charity to stop awarding grants to Black women-owned businesses, finding that doing so likely violated the Civil Rights Act of 1866. In the wake of Fearless Fund, the Trump Administration has embarked on sweeping efforts to stop private organizations from engaging in what it terms “illegal discrimination” and “DEI.” If left to stand, rulings like Fearless Fund will threaten thousands of charitable programs, cause charities to operate from fear of losing their tax-exempt statuses rather than from commitments to their missions, and create a substantial chilling effect.
This Feature argues that these attacks on private remedial action are not supported in law or public policy and that the charities’ longstanding practice is not illegal discrimination. To the contrary, Congress has passed no civil-rights law targeting donative assistance, and public policy and the First Amendment right of expressive association strongly support the efforts of private groups to address social problems free from government interference. Absent a return to the pre-Fearless Fund status quo or new legislation, courts and the IRS should develop appropriate standards for private remedial action that are both consistent with a common-law approach to charity and mindful of the important role charities play in solving social problems in a free and pluralistic civil society
Lunch and Conversation on Standing, Severability, and Preliminary Injunctions
No full textDuring a luncheon, attendees participated in a candid conversation on standing, severability, and preliminary injunctions. The discussion featured The Honorable Stephanos Bibas of the United States Court of Appeals for the Third Circuit and Professor Kevin Walsh, offering invaluable insights into these pivotal legal principles
“Declaring Law”: A Pragmatic Analysis of Law as Communication and Implications for the Hart-Fuller Debate
Full text linkThe year 2024 is the sixtieth anniversary of a seminal work in American jurisprudence, itself the consequence of the one of the most important debates in legal philosophy, the Hart-Fuller Debate conducted in 1958’s Harvard Law Review.
Legal philosopher Lon Fuller famously and controversially posited eight “legal principles” as constitutive of a “morality of law” (The Morality of Law, Yale University Press). Legal positivists stridently objected to Fuller’s theory, notably philosopher H.L.A. Hart. They rejected the idea that such things indicated a “moral” dimension to the law. The debate continued for many years, lately with many legal scholars reclaiming the ideas suggested by “Fuller’s Eight.”
A dimension of philosophy that has always been thought at odds with Fuller’s Eight—the philosophy of language—can offer a fresh perspective on what Fuller meant. Under this study, legal rules are examined as linguistic utterances that not only say something, but also do something in their saying. This approach reveals an unstated dialectical context that Fuller presupposed, and shows how law-making, adjudicating, and enforcing are reflected in law’s declaratory, directive, and commissive instantiations.
Drawing upon the work of linguists and ordinary language philosophers J. L. Austin, Paul Grice, John Searle, and Elizabeth Anscombe, among others, the article demonstrates how Fuller’s Eight mirror communicative maxims and felicitous declarations, explains what breakdowns in those conditions portend for the relationship between the sovereign and the governed, and suggests a list of distinct purposive categories—legal “illocutionary acts”—which distinguish what we do when we practice law
136th Commencement Address
No full textThe University proudly honored the Honorable Edward H. Meyers \u2705, of the United States Court of Federal Claims, as the 2025 commencement speaker, awarding him the Presidential Medal. Dean Payne introduced Judge Meyers, highlighting his distinguished career and enduring contributions to the legal community. Judge Meyers is a summa cum laude graduate of Catholic Law who earned the John L. Garvey Faculty Award for achieving the highest academic distinction in his class. His impressive career includes clerking for the court he now serves, excelling in private practice managing complex civil litigation, and being appointed to the federal bench in 2020. Throughout his career, Judge Meyers has been a steadfast supporter of Catholic Law, mentoring students, hiring graduates as clerks, and strengthening the vital connection between the classroom and the courtroom