Judicial Supremacy and Nonjudicial Interpretation of the Constitution

When do, and when should, actors other than judges interpret the Constitution? Over time, this question has received attention from many prominent political leaders. In recent years, it has generated a rich yet underexposed academic debate. This Article seeks to draw attention to and further that debate. This Article has three main parts. The first is a survey of responses in academic literature to the question who interprets? The author argues that although judicial supremacy is widely embraced as a model of constitutional interpretation, other accounts raise serious challenges to its descriptive power and normative appeal. The second part of the Article advances a revised model of judicial supremacy-one which retains the judiciary as the ultimate arbiter of what the Constitution means, but fosters the interpretative capacities of nonjudicial actors, and vests their interpretations with enhanced significance. In the last part, the Author discusses several current legal issues that demonstrate the relevance and utility of the who interprets inquiry to constitutional interpretation at large

The Contagion of Constitutional Avoidance

Part of Symposium: "The Schiavo Case: A Symposium

Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1

On December 1, 2006, Federal Rule of Appellate Procedure 32.1 will take effect, allowing citation to all opinions issued on or after January 1, 2007 that have been designated unpublished or nonprecedential. The new Rule, under consideration by the judicial Conference of the United States since the 1990s, seemingly puts an end to the long and sometimes contentious debate over whether citation to unpublished opinions should be permitted. But the Rule does not address a more important issue: whether the federal courts of appeals should designate some of their opinions as nonprecedential. This Article argues the notion that judges can and should determine an opinion\u27s precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made new law or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges