If the Devil Himself Knows Not the Mind of Man , How Possibly Can Judges Know the Motivation of Legislators?

This commentary is based upon a statement published by Judge J. Braxen Craven, Jr., of the Court of Appeals for the Fourth Circuit when he said that there are result oriented judges and judges who are result oriented but don\u27t know it or won\u27t admit it. The author argues that an inquiry into motivation is clearly a futile quest that\u27s only purpose is to enable judges to read their ideas of good social policy into the law with the pretense that they are not doing so. The author claims that judicial opinions are the product of judicial biases and lawyers should go beyond the opinions to try and systematically and thoroughly understand the Court

State Power Over the Federal Contractor: A Problem in Federalism

In large measure both the federal officials, whose job it is to enter the commercial market to fulfill the government\u27s material needs, and the federal contractor, wherever he may be and of whatever size he may be, tend to look upon attempts by states to tax or regulate with a skeptical eye. The state appears as some alien interloper whose activities result only in hardship and delay to the contractor and consequent annoyance and financial cost to the federal government. By and large, accordingly, a prevailing idea in the federal procurement circles seems to be that of avoiding, whenever possible, the impact of state intervention into contractual matters. Running through the procurement regulations is a thread of policy which has the effect of trying to insulate federal contracting from state power of whatever type. That this is not entirely justified is one of the conclusions which will be reached in this Article

Social Order and the Limits of Law: A Theoretical Essay

Professor Jenkins maintains that Americans demand that the law solve all of [their] problems and secure all of [their] purposes. The result is that we so overload the legal apparatus that it short circuits, creating a spectacular display of fireworks but affecting nothing save its own wreckage. \u27 That assertion, even if only partially accurate, merits close and continuing attention. Jenkins\u27 analysis of that hypothesis--that proposition-is at once thought-provoking and illuminating. We are all in his debt for having written such a challenging book, even though I have some fundamental disagreements with how he develops that theme. Jenkins\u27 work is a significant contribution and should be on the reading list of all lawyers--certainly all lawyers in Academia, whether in the professoriate or the student body. Unfortunately, although this book is essential reading, I do not expect my recommendation to be followed. The study of law is far too vocational, too reductionist, and too concentrated on the nuts-and-bolts of what lawyers do. Law schools annually graduate thousands who have managed to survive the nit-picking boredom of law classes, but those graduates find that they know very little about law. They know many rules of law, and thus can and do readily pass bar examinations; but they have little conception of the role of law in a polity that trumpets that it has a government of laws, not of men. Reading Jenkins will not correct all of that sorry state of affairs-far from it. It will, however, help those who read and heed it to analyze the context from which law derives,the environment within which it exists and acts, the enduring problems with which it has to deal, and the conditions it must satisfy if it is to succeed

The Supreme Court in a New Role: From Negative Naysayer to Affirmative Commander

Four major milestones mark the almost two centuries of Supreme Court activity. The first three are the 1803 power-grab in Marbury,l the invention of substantive due process after the Civil War,2 and the abdication of the Justices as ultimate economic policymakers in the 1930s and \u2740s

Reductionism in the Law Schools Or Why the Blather about the Motivation of Legislators

The ghost of Christopher Columbus Langdell-the dean of the Harvard Law School whom Judge Jerome Frank once called a brilliant neurotic -still stalks the law schools. Often it comes to rest int he offices of the law reviews that most law schools think it necessary to publish. Here, Langdell\u27s influence may be seen in almost everything the editors print: the choice of topics, the selection of articles, and particularly the affliction that Karl Llewellyn once called cititis, the disease of too many footnotes. (The Disease is contagious; it infects the Supreme Court itself, as any issue of the Supreme Court Reporter will reveal. Possibly this is because some of the Justices and most of their clerks have been editors of law journals.) That, of course, is quite familiar, but is it relevant to the theme of legislative motivation in judicial decisionmaking? I think that answer is obvious. In tense concentration upon such minutiae of the judicial process does not lead to the type of understanding so badly needed, understanding not only about the judiciary but about law itself. It is the very antithesis of what should be done