1,720,985 research outputs found
Exile on Main Street: Competing Traditions and Due Process Dissent
Full text linkEverybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and inter-textual aspects of doctrinal development. This method proceeds by dividing doctrinal territories into rival schools of thought and then constructing opinion genealogies for each competing school. Connections between opinions—majority, concurring, and dissenting—are justified using both citation and more nuanced hermeneutic analyses. Through systematic tracking of debate between rival schools over generations, the impact of dissents is revealed in the turns taken during unfolding doctrinal argument.
Using this method, this Article examines two key Due Process territories—economic liberty and “incorporation”—and demonstrates how uncited Supreme Court dissents dramatically changed the course of these doctrines. First, it is demonstrated that uncited dissents by Joseph Bradley in the Slaughter-House Cases and by Oliver Wendell Holmes in Lochner v. New York directly contributed to the well-known rise and fall of economic liberty. Second, the momentous battle over incorporation is proven to have dramatically turned under the influence of uncited dissents by John Marshall Harlan in Hurtado v. California and Hugo Black in Adamson v. California. The incorporation story features analysis of John Paul Stevens’ final, passionate dissent after thirty-five years on the Court, which came in the 2010 blockbuster Second Amendment incorporation case, McDonald v. City of Chicago. Apparent contradictions in this critical opinion are resolved by connecting Stevens’ dissent to the tradition of uncited great dissents that forever changed substantive due process doctrine.
To illustrate the results of its method, this Article introduces an innovative series of “opinion maps” that graphically represent the competing due process genealogies in economic liberty and incorporation doctrine. Rendered using custom software designed by the author, the opinion maps present information-rich, epic-scale historical portraits of these key constitutional doctrines. The maps have practical and theoretical use. Practically, they offer accessible guides to the place of and relationships between major opinions in two crucial substantive due process debates. Theoretically, the figures rendered collectively suggest deep metaphors for the interpretative space we call doctrine and for the vital role dissents play in drawing lines of authority that define the shape and boundaries of this interpretative space
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
The Virtue of Obscurity
Full text linkThe critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational basis review. To the critics, Justice Scalia’s dissenting characterization of the majority’s analysis as “nonspecific hand-waving” seems right on the money.
Yet this line of critique assumes that the Court should always aspire to specificity and clarity in its doctrinal analysis. In this brief essay, I seek to challenge that assumption and argue for the occasional virtue of doctrinal obscurity. My argument here concerns situations like that presented by DOMA where the Court confronts ugly social realities that have become codified in unpleasant laws or distasteful precedents. Like speaking with a homophobic relative at a series of family dinners, these situations are inherently awkward and sometimes less-than-direct words are the best way to move the conversation in a productive direction. Sometimes respect for etiquette counsels that the Court should dance around a little before declaring: “the Constitution does not allow this.” In my view, Justice Kennedy’s obscurity in Windsor is justified by such doctrinal etiquette.
To flesh out these ideas, I identify earlier instances of virtuous doctrinal obscurity in the Court’s equal protection and due process jurisprudence and show how these cases employed a strategy of polite obfuscation to deal with embarrassing precedent. Importantly, these cases – Skinner v. Oklahoma, Department of Agriculture v. Moreno, Romer v. Evans, and Lawrence v. Texas – also provide the legitimate doctrinal justification for the result in Windsor. In the end, I argue that doctrinal obscurity served a useful role in all of these cases by smoothing over difficult constitutional contradictions and facilitating the transition from a regrettable past to a more promising future
A Visual Guide to NFIB v. Sebelius
Full text linkThough Chief Justice Roberts ultimately provided the fifth vote upholding the Affordable Care Act (ACA) under the Tax Power, his was also one of five votes finding the ACA exceeded Congress’ power under the Commerce Clause.
The doctrinal basis for Roberts’ Commerce Clause analysis was hotly contested. While Roberts argued that the ACA’s purported exercise of Commerce power “finds no support in our precedent,” Justice Ginsburg accused the Chief Justice of failing to “evaluat[e] the constitutionality of the minimum coverage provision in the manner established by our precedents.”
These diametrically opposed perspectives on “precedent” might prompt observers to ask whether Roberts and Ginsburg considered the same cases as controlling. This Visual Guide shows that though the justices agreed on relevant cases, they disagreed on which opinions within those cases properly stated the law. Both Roberts and Ginsburg implicitly adopted the reasoning of prior dissents and concurrences as well as majority opinions. The map illustrates how competing lines of Commerce Clause opinions constitute a long-running doctrinal dialectic that culminated – for now – in NFIB v. Sebelius.
This Visual Guide is a single-page PDF poster designed to serve as quick reference to the doctrinal debate
Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland
Full text linkDoes stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.
This Article analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady v. Maryland – the Court’s landmark 1963 decision that requires prosecutors to disclose favorable evidence to criminal defendants. Last Term, Justice Scalia argued in his Connick v. Thompson concurrence that Brady’s scope does not extend to prosecutorial disclosure of untested evidence that could prove innocence. Though coherent, Scalia’s argument depends on a particularly formal approach to stare decisis and a procedural view of due process. His argument against expanding Brady can be contested by what I term a “justificatory” approach to stare decisis and a competing substantive view of due process. This recent conflict between formal and justificatory stare decisis approaches and competing due process schools reflects a deeper metadoctrinal pattern.
Based on a close reading of over a century of case law, this Article demonstrates how successful justificatory stare decisis arguments have facilitated expansion of criminal due process while formal stare decisis arguments have constrained doctrinal growth. Building on prior work, I illustrate the Brady dialectic and its relationship to stare decisis through graphical “opinion maps” that chart rival lines of majority, concurring, and dissenting opinions. Mapping this key due process territory offers insight on the deeper conflict between substance and procedure in due process jurisprudence as well as a generalizable method for studying the impact of stare decisis on constitutional adjudication
Comments on Maryland v. King in \u27U.S. Supreme Court to Hear Arguments over Md. DNA Case: Justices\u27 Decision Will Have National Implications on Future Crime-Fighting Procedures\u27
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