Rolling John Bingham in His Grave: The Rehnquist Court makes Sport With the 14th Amendment

The Warren Court organized the concept of strict scrutiny in Shelton v. Tucker. Where the defendant was obligated to treat people without regard to membership in a suspect class and failed to do that, the Court would hold them liable for their behavior unless it was done for a compelling public reason and there was no less damaging alternative. The concept of strict scrutiny had nothing to do with intentions. The issue for the Warren Court was whether one party had injured another because of a forbidden reason. That concept of causation was understood broadly. The Court was not looking into people’s minds, rather it looked at their behavior. If the behavior was tied to race, religion or other “suspect” categories it was not permissible. The Court drove this point home in Palmer v. Thompson, holding that the closing of a swimming pool applied to everyone, not just blacks, and that the Court was uninterested in the actors’ motivations

In Search of the Link Between Due Process and Jurisdiction

The purpose of this Article is to locate the sources of jurisdictional doctrine. A coherent theory of due process ought to help explain and guide the development of jurisdictional doctrine. In fact, the sources of due process analysis pose a challenge for jurisdictional doctrine because they expose both the importance and the irrelevance of jurisdiction to fairness, convenience, and due process. A correlative issue concerns two major consequences of jurisdiction: the privilege of collateral attack and the opportunities for review involved in the constitutionalization of the area. Few of the articulated explanations for the existing limitations on jurisdiction seem to justify those remedies. As the doctrinal bases of jurisdiction are explored, they will also be tested against these consequences of jurisdiction

An Interpretation of Gollum

Traces Gollum’s story through The Lord of the Rings. Notes that Gollum tended to evil before possessing the Ring, and comments on the mutability of the master/servant situation

The Passing of the Cardozo Generations

I want to make the following three points: First, constitutional discourse has changed from the consequentialism of the generations of lawyers and judges who followed the model of Benjamin N. Cardozo to the formalism now ascendant in bench and bar. Second, this change in constitutional rhetoric and argument has widened the disjunctions in argument. Polling data make clear that people have their own views of the Constitution. Knowledge about contrary official interpretations gives them vocabulary, but is relatively unlikely to change minds. Moral arguments and appeals to self-interest are more effective with the public. Third, one consequence is that both the form and the substance of constitutional guarantees may be threatened by the turn toward a type of legal discourse that omits explanation of the moral imperatives and real-world risks and consequences that mandate the imposition of constitutional guarantees