In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law.
Professor Jonathan Choi’s Measuring Clarity in Legal Text adds to a growing literature in empirical legal interpretation, which uses corpus linguistics and survey-experiments to inform legal interpretation. Measuring Clarity offers two intriguing theses, one positive and one critical. On the “positive” reading, the article defends its word embedding approach as a useful method of first-order legal interpretation. On a “critical” reading, the article employs word embeddings as a new tool to assess textualism’s fundamental linguistic assumptions, concluding that there is a fundamental problem with textualism, or at least its current practice.
To understand criminal justice, education, and family law, we lawyers typically look to social scientists, and their external expertise does teach us much. But we often neglect lived experience. Occasionally, we should toggle from the dry regressions and clinical detachment of social science to the internal perspective and expertise of those who live through family breakup, foster care, disrupted schooling, drugs, and crime. And that is what Rob Henderson’s breakout memoir, Troubled, gives us: a window on troubled youth.
In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay argues that Magna Carta does not provide conclusive evidence whether contemporaries were thinking about Roman and canon law when reforming the common law.
This Essay argues that Gomez v. Commissioner of Correction provides an appropriate, holistic framework for determining when defense counsel should be precluded from raising Napue arguments in post-conviction proceedings.
In Sackett v. EPA, under the guise of judicial interpretation of the Clean Water Act, the Court effectively reduced the Act’s coverage of the nation’s streams by as much as 80%, and of the nation’s wetlands by at least 50%. Contrary to the majority’s proffered reasoning, nothing in the relevant statutory language compelled such an unprovoked hit job on the nation’s ability to protect its waters from harmful pollution.
The problem of caste discrimination has come into sharp focus in the United States. In the last few years, there have been several high-profile allegations and cases of caste discrimination in employment and educational settings. As a result, organizations—including governmental entities—are taking action, including by updating their rules and regulations to explicitly prohibit discrimination based on caste and initiating enforcement actions against alleged caste discrimination.
In his recent article, Against Bankruptcy Exceptionalism, Professor Jonathan M. Seymour argues that bankruptcy courts have wrongly bucked the Supreme Court’s trend toward textualism. Bankruptcy courts believe that they need to approach the Bankruptcy Code pragmatically in light of the unique dynamics inherent in bankruptcy practice and therefore adopt purposivist, equitable, or “rough justice” approaches to facilitate that kind of pragmatism—an attitude that Professor Seymour calls “bankruptcy exceptionalism.”