Telling Miller’s Tale: A Reply to David Yassky

A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard model and has started to generate alternatives to the Standard Model. Denning and Reynolds critique that part of Yassky\u27s theory dismissing United States v. Miller as providing the basis for an individual rights interpretation of the Second Amendment

The Five Stages of Law Review Submission

Our article is a humorous look at the law review submissions process from the author’s perspective. It suggests that the process of submitting to law reviews tracks Elisabeth Kubler-Ross’s “five stages of grief.

Article II, the Vacancies Act and the Appointment of “Acting” Executive Branch Officials

This Article looks at both the Vacancies Act, as well as the provisions with which the Administration countered, in the context of both the Lee nomination and one other case (largely ignored by the press) involving Duke law professor Walter E. Dellinger\u27s service as acting Solicitor General from July 1996 until August 1997. Contrary to Administration claims, I conclude that the Vacancies Act does apply to Justice Department officials, and that the statute cited by the Administration allegedly superseding the Vacancies Act, if not read in harmony with that Act, unconstitutionally allows the President and the Attorney General to circumvent the Senate\u27s constitutional advice and consent role set forth in Article II

Can Judges Be Uncivilly Obedient?

In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed. They were skeptical because, in their opinion, even hyper-formalist legal opinions would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when practiced by non-judicial actors. In this Article, I argue that judicial uncivil obedience is possible, discuss examples of lower court uncivil obedience to United States Supreme Court decisions, speculate why uncivil obedience might be a particularly attractive form of dissent by inferior courts in a hierarchical judicial system, and argue that my examples satisfy Bulman-Pozen and Pozen’s criteria. In addition, I argue that the constraints on uncivil obedience identified by Bulman-Pozen and Pozen, which can limit the opportunity for its exercise, have analogues that likewise limit the ability of judges to engage in uncivil obedience

The Case Against Appointing Politicians to the Supreme Court

Ben Barton’s recent paper concludes that the members of the current Court are more “cloistered and detached” than at any other point in the Court’s history. His findings are bound to renew calls for the appointment of politicians to the Court; but I argue that remedying the perceived deficit of life experience and “practical wisdom” by appointing persons currently or formerly active in partisan politics would likely not deliver the claimed benefits and might affirmatively harm the Court as an institution

Judge Noonan\u27s J\u27accuse . . . !

This review of John Noonan’s book Narrowing the Nation’s Power: The Supreme Court Sides with the States critically evaluates the evidence Judge Noonan offers in support of his thesis that the Court\u27s recent federalism decisions have done violence to the Constitution, and put Congress\u27s ability to govern effectively at risk. I conclude that while one may quarrel with aspects of the Court\u27s recent approach to federalism questions, the indictment Judge Noonan has penned fails to acknowledge reasonable arguments that contradict his thesis, and that he unfairly suggests that the Court has abandoned good faith legal analysis in favor of political will in rendering its recent decisions