49,744 research outputs found

    Justice Scalia and Queen Anne

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    This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect. Keywords: originalism, original meaning, Scalia, interpretation, meanin

    A Thought Experiment

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    Herewith, Justice Antonin Scalia\u27s long lost dissenting opinion in Brown v. Board of Education

    Defending Defenders: Remarks on Nichol and Pierce

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    Both Nichol and Pierce, as devotees of grand theory, are interested in analyzing Scalia\u27s agenda, however described. They view Defenders as a fundamental change in the Court\u27s standing jurisprudence, in part because of the symbolism they and their fellow detractors impart to the decision. In contrast, the author is apparently a miniaturist, at least when it comes to the possibility of grand theories and broader agendas. Like Justice Kennedy, the author does not read Justice Scalia\u27s opinion to hold that Congress cannot confer standing by defining an injury and relating it to a class of persons entitled to sue

    A Fixed Rule for a Changing World: The Legacy of \u3ci\u3eLucas v. South Carolina Coastal Council\u3c/i\u3e

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    In light of the 25th anniversary of the Supreme Court’s Lucas decision, this Article reexamines the actual relevance of the opinion by weighing the framing, reach, and aftermath of Justice Scalia’s majority opinion. This Article argues that Justice Scalia’s opinion consciously framed the regulatory takings doctrine in a more favorable way for private property owners, and by doing so, helped pave the way for subsequent denial that environmental and climate concerns are a valid basis for any government action. Justice Scalia attempted to create a regulatory environment that protects private real estate investments instead of protecting the public environment as intended by democratically enacted regulations, but courts have applied Lucas in a more limited manner than Justice Scalia probably intended

    Justice Scalia: Class Warrior

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    A Hobbesian Bundle of Lockean Sticks: The Property Rights Legacy of Justice Scalia

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    No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation

    Ugly American Hermeneutics

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    This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud

    Ugly American Hermeneutics

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    This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud

    Justice Scalia\u27s Tax Jurisprudence

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    Justice Scalia is an outspoken conservative acclaimed for his remarkable intellect and scholarship, and is noted for his adherence to the principle of judicial restraint. He pursues what he insists is an originalist path that relies on the Constitution\u27s actual text in decision-making. He works hard to try to maintain constitutional interpretation that does not change from case to case. So what happens when an originalist --concerned that Congress writes imprecise legislation and then leaves its interpretation and application in the hands of administrative agencies or, worse yet, the courts-is forced to deal with tax issues? This article takes a look at whether Scalia has been successful in trying to construct a coherent theory of constitutional interpretation that does not change from case to case, when those cases involve tax issues

    Justice Scalia and the Commerce Clause: Reflections of a State Tax Lawyer

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    This paper considers Justice Scalia\u27s substantive views of the restraints that the commerce clause imposes on state taxation. My purpose is to examine critically Justice Scalia\u27s dormant or negative commerce clause analysis of the state tax issues on which he has opined and to draw from that examination some general conclusions about Justice Scalia\u27s commerce clause jurisprudence
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