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Dartmouth College Case Symposium Presenters March 1-2, 2019 Akhil Reed Amar Thomas Barnico
Dartmouth College Case Symposium Presenters March 1-2, 2019 Akhil Reed Amar Sterling Professor of Law Yale Law School Professor Akhil Reed Amar teaches constitutional law in both Yale College and Yale Law School. After graduating from Yale College, summa cum laude, in 1980 and from Yale Law School in 1984, and clerking for then Judge (now Justice) Stephen Breyer, Amar joined the Yale faculty in 1985 at the age of 26. His work has won awards from both the American Bar Association and the Federalist Society, and he has been cited by Supreme Court justices across the spectrum in more than three dozen cases—tops in his generation. He regularly testifies before Congress at the invitation of both parties; and in surveys of judicial citations and/or scholarly citations, he invariably ranks among America’s five most-cited mid-career legal scholars. He is a member of the American Academy of Arts and Sciences and a recipient of the American Bar Foundation’s Outstanding Scholar Award. In 2008 he received the DeVane Medal—Yale’s highest award for teaching excellence. He has written widely for popular publications, including The New York Times, The Washington Post, The Wall Street Journal, Time, and The Atlantic. He was an informal consultant to the popular TV show, The West Wing, and his constitutional scholarship has been showcased on a wide range of broadcasts, including The Colbert Report, Up with Chris Hayes, Tucker Carlson Tonight, Morning Joe, AC360, Your World with Neil Cavuto, 11th Hour with Brian Williams, Fox News @Night with Shannon Bream, Fareed Zakaria GPS, Erin Burnett Outfront, and Constitution USA with Peter Sagal. -
The Majoritarian Difficulty and Theories of Constitutional Decision Making
THE MAJORITARIAN DIFFICULTY AND THEORIES OF CONSTITUTIONAL DECISION MAKING Michael C. Dorf* Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the “counter-majoritarian difficulty.” Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel’s worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses? Do American courts, in other words, have a “majoritarian difficulty?” This Article examines that question from an interpretive perspective. It asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court’s inability to act in a strongly counter-majoritarian fashion. After highlighting difficulties with three of the leading approaches to constitutional interpretation— representation-reinforcement, originalism, and living constitutionalism—the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias. However, such third-legislative-chamber accounts rest on libertarian premises that lack universal appeal. They also lack prescriptive force, although this may be a strength: Subordinating an interpretive theory—such as representation-reinforcement, originalism, or living constitutionalism—to a view of judicial review as a form of third-legislative-chamber veto can ease the otherwise unrealistic demands for counter-majoritarianism that interpretive theories face. -
Alexander Bickel's Philosophy of Prudence
The Yale Law Journal Volume 94, Number 7, June 1985 Alexander Bickel's Philosophy of Prudence Anthony T. Kronmant INTRODUCTION Six years after Alexander Bickel's death, John Hart Ely described his former teacher and colleague as "probably the most creative constitutional theorist of the past twenty years."" Many today would concur in Ely's judgment.' Indeed, among his academic peers, Bickel is widely -regarded with a measure of respect that borders on reverence. There is, however, something puzzling about Bickel's reputation, for despite the high regard in which his work is held, Bickel has few contemporary followers.' There is, today, no Bickelian school of constitutional theory, no group of scholars working to elaborate Bickel's main ideas or even to defend them, no con- tinuing and connected body of legal writing in the intellectual tradition to which Bickel claimed allegiance. In fact, just the opposite is true. In the decade since his death, constitutional theory has turned away from the ideas that Bickel championed, moving in directions he would, I believe, f Professor of Law, Yale Law School. 1. J. ELY, DEMOCRACY AND DISTRUST 71 (1980). 2. See B. SCHMIDT, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE JUDICI- ARY AND RESPONSIBLE GOVERNMENT 1910-21 (pt. 2) 722 (1984) (describing Bickel as "the most brilliant and influential constitutional scholar of the generation that came of age during the era of the Warren Court"); Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1014 (Bickel "revered as spokesman-in-chief for a school of thought that emphasizes the importance of judicial restraint"). -
Faculty Activities
faculty activities Bruce Ackerman • “Development lawyering, Between Equality and publications Subordination: The Politics of legal Knowledge in • Goodbye Montesquieu, in S. Rose-Ackerman & Global North-South Academic Exchange,” Yale law P. Lindseth eds., Comparative Administrative Law 128 School, Mar. 24, 2012 (2011) publications • Nixon In Iran?, Huffington Post, Mar. 19, 2012 • Developing Citizenship, 9 Issues in Legal Scholarship • The Legal Case Against Attacking Iran, L.A. Times, 1 (oct. 2011) (online) Mar. 5, 2012 Bruce Ackerman • Reconstructing Citizenship for the Twenty First Century, Ian Ayres an Interview with Bruce Ackerman, La Vie des Idees, lectures and addresses Mar. 5, 2012 • “The Rise of Data Driven Decision Making,” IBM Tokyo, • How Congress Can Overrule Citizens United Nov. 8 (with I. Ayres), Huffington Post, Feb. 9, 2012 • “how to Regulate opt out: An Economic Theory of • Recess Appointments: Release the Legal Advice, Altering Rules” (NYU, Yale, University of Connecticut Wall St. J., Jan. 11, 2012 law Schools) • Washington Standoff, L.A. Times, Jan. 6, 2012 • Information Escrows, Berkeley and Yale • A Christmas Present for the Pentagon, Slate, Dec. 28 • 9 Randomized Tests to Improve Tax Compliance, hMRC Muneer I. Ahmad 2011 Debt Management, london • A United States of Europe?, L.A. Times, Dec. 14, 2011 publications • The Law School Experience [letter], N.Y. Times, Dec. 5, • Anti-Incentives: The Power of Resisted Temptation, Eur. 2011 Fin. Rev. 40 (Feb.-Mar. 2012) • Supreme Court’s Obamacare Ruling Will Politicize • Randomizing Law, 159 U. Pa. L. Rev. 929 (2011) (with Judicial Process, Daily Beast, Nov. 15, 2011 M. Abramowicz & Y. listokin) • Don’t Tax the Rich. -
Network Map of Knowledge And
Humphry Davy George Grosz Patrick Galvin August Wilhelm von Hofmann Mervyn Gotsman Peter Blake Willa Cather Norman Vincent Peale Hans Holbein the Elder David Bomberg Hans Lewy Mark Ryden Juan Gris Ian Stevenson Charles Coleman (English painter) Mauritz de Haas David Drake Donald E. Westlake John Morton Blum Yehuda Amichai Stephen Smale Bernd and Hilla Becher Vitsentzos Kornaros Maxfield Parrish L. Sprague de Camp Derek Jarman Baron Carl von Rokitansky John LaFarge Richard Francis Burton Jamie Hewlett George Sterling Sergei Winogradsky Federico Halbherr Jean-Léon Gérôme William M. Bass Roy Lichtenstein Jacob Isaakszoon van Ruisdael Tony Cliff Julia Margaret Cameron Arnold Sommerfeld Adrian Willaert Olga Arsenievna Oleinik LeMoine Fitzgerald Christian Krohg Wilfred Thesiger Jean-Joseph Benjamin-Constant Eva Hesse `Abd Allah ibn `Abbas Him Mark Lai Clark Ashton Smith Clint Eastwood Therkel Mathiassen Bettie Page Frank DuMond Peter Whittle Salvador Espriu Gaetano Fichera William Cubley Jean Tinguely Amado Nervo Sarat Chandra Chattopadhyay Ferdinand Hodler Françoise Sagan Dave Meltzer Anton Julius Carlson Bela Cikoš Sesija John Cleese Kan Nyunt Charlotte Lamb Benjamin Silliman Howard Hendricks Jim Russell (cartoonist) Kate Chopin Gary Becker Harvey Kurtzman Michel Tapié John C. Maxwell Stan Pitt Henry Lawson Gustave Boulanger Wayne Shorter Irshad Kamil Joseph Greenberg Dungeons & Dragons Serbian epic poetry Adrian Ludwig Richter Eliseu Visconti Albert Maignan Syed Nazeer Husain Hakushu Kitahara Lim Cheng Hoe David Brin Bernard Ogilvie Dodge Star Wars Karel Capek Hudson River School Alfred Hitchcock Vladimir Colin Robert Kroetsch Shah Abdul Latif Bhittai Stephen Sondheim Robert Ludlum Frank Frazetta Walter Tevis Sax Rohmer Rafael Sabatini Ralph Nader Manon Gropius Aristide Maillol Ed Roth Jonathan Dordick Abdur Razzaq (Professor) John W. -
Speaker Biographies
Confrontation, Collaboration, and Cooperation: (En)Countering Disagreement in Pursuit of Public Interest The Fourteenth Annual Liman Colloquium March 3-4, 2011 Yale Law School Sponsored by Yale Law School and the Liman Public Interest Program SPEAKERS Nan Aron President, Alliance for Justice and AFJ Action Campaign Nan Aron is the President of the Alliance for Justice (AFJ), a national association of public interest and consumer rights organizations, and its partner advocacy organization, the Alliance for Justice Action Campaign (AFJAC). Aron founded AFJ in 1979 and continues to guide the organization in its mission to advance the cause of justice for all Americans, strengthen the public interest community's influence on national policy, and foster the next generation of advocates. In 1985, she founded AFJ's Judicial Selection Project, a leading voice in the efforts to achieve a fair and independent judiciary and a regular participant in the often-controversial judicial nominations process. For the last decade, AFJ has produced films to help educate the public about social justice issues and expose students to careers in public interest advocacy; in 2010, “Crude Justice” examined the effects of the Deep Horizon oil spill. Aron is a frequent speaker at universities, law schools, corporations, nonprofits, and foundations, and her writing has appeared in publications such as The New York Times, The Wall Street Journal, The Washington Post, USA Today, and Vanity Fair. Samuel Bagenstos Deputy Assistant Attorney General, U.S. Department of Justice, Civil Rights Division Samuel Bagenstos is Deputy Assistant Attorney General for the U.S. Department of Justice, Civil Rights Division. -
Is Qualified Immunity Unlawful?
Is Qualified Immunity Unlawful? William Baude* The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation. Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law “good-faith” defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides “fair warning” to government officials, akin to the rule of lenity. On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. Furthermore, even if these things were otherwise, the doctrine of qualified immunity would not be the best response. DOI: https://dx.doi.org/10.15779/Z38MG7FV8G Copyright © 2018 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Neubauer Family Assistant Professor of Law, University of -
The Judicial Function Under the Canadian Charter of Rights and Freedoms Anne F Bayefsky
The Judicial Function under the Canadian Charter of Rights and Freedoms Anne F Bayefsky* The author surveys the various American L'auteur resume les differentes theories am6- theories of judicial review in an attempt to ricaines du contr61e judiciaire dans le but de suggest approaches to a Canadian theory of sugg6rer une th6orie canadienne du r8le des the role of the judiciary under the Canadian juges sous Ia Charte canadiennedes droits et Charter of Rights and Freedoms. A detailed libert~s. Notamment, une 6tude d6taille de examination of the legislative histories of sec- 'histoire 1fgislative des articles 1, 52 et 33 de ]a Charte d6montre que les r~dacteurs ont tions 1, 52 and 33 of the Charterreveals that voulu aller au-delA de la Dclarationcana- the drafters intended to move beyond the Ca- dienne des droits et 6liminer le principe de ]a nadianBill ofRights and away from the prin- souverainet6 parlementaire. Cette intention ciple of parliamentary sovereignty. This ne se trouvant pas incorpor6e dans toute sa intention was not fully incorporated into the force au texte de Ia Charte,la protection des Charter,with the result that, properly speak- droits et libert~s au Canada n'est pas, Apro- ing, Canada's constitutional bill of rights is prement parler, o enchfiss~e )) dans ]a cons- not "entrenched". The author concludes by titution. En conclusion, l'auteur met 'accent emphasizing the establishment of a "contin- sur l'instauration d'un < colloque continu uing colloquy" involving the courts, the po- auxquels participeraient les tribunaux, les litical institutions, the legal profession and institutions politiques, ]a profession juri- society at large, in the hope that the legiti- dique et le grand public; ]a l6gitimit6 de la macy of the judicial protection of Charter protection judiciaire des droits garantis par rights will turn on the consent of the gov- la Charte serait alors fond6e sur la volont6 erned and the perceived justice of the courts' des constituants et Ia perception populaire de decisions. -
Ted Cruz Promoted Himself and Conservative Causes As Texas’ Solicito
FORMER STATE SOLICITORS GENERAL AND OTHER STATE AG OFFICE ATTORNEYS WHO ARE ACTIVE JUDGES by Dan Schweitzer, Director and Chief Counsel, Center for Supreme Court Advocacy, National Association of Attorneys General March 18, 2021 Former State Solicitors General (and Deputy Solicitors General) Federal Courts of Appeals (11) Jeffrey Sutton – Sixth Circuit (Ohio SG) Timothy Tymkovich – Tenth Circuit (Colorado SG) Kevin Newsom – Eleventh Circuit (Alabama SG) Allison Eid – Tenth Circuit (Colorado SG) James Ho – Fifth Circuit (Texas SG) S. Kyle Duncan – Fifth Circuit (Louisiana SG) Andrew Oldham – Fifth Circuit (Texas Deputy SG) Britt Grant – Eleventh Circuit (Georgia SG) Eric Murphy – Sixth Circuit (Ohio SG) Lawrence VanDyke – Ninth Circuit (Montana and Nevada SG) Andrew Brasher – Eleventh Circuit (Alabama SG) State High Courts (6) Stephen McCullough – Virginia Supreme Court Nels Peterson – Georgia Supreme Court Gregory D’Auria – Connecticut Supreme Court John Lopez – Arizona Supreme Court Sarah Warren – Georgia Supreme Court Monica Marquez – Colorado Supreme Court (Deputy SG) State Intermediate Appellate Courts (8) Kent Cattani – Arizona Court of Appeals Karen King Mitchell – Missouri Court of Appeals Kent Wetherell – Florida Court of Appeals (Deputy SG) Scott Makar – Florida Court of Appeals Timothy Osterhaus – Florida Court of Appeals Peter Sacks – Massachusetts Court of Appeals Clyde Wadsworth – Hawaii Intermediate Court of Appeals Gordon Burns – California Court of Appeal (Deputy SG) Federal District Court (11) Gary Feinerman – Northern -
The Originalism That Was, and the One That Will Be
GREVE (DO NOT DELETE) 3/28/2013 10:11 AM The Originalism That Was, and the One That Will Be Michael S. Greve* INTRODUCTION The original title for the conference talk on which this brief article is based, hand-picked by the excellent Jack Balkin, was, “What Was Originalism.” While characteristically clever and provocative, the suggestion of originalism’s death captures my position only imperfectly. I believe that originalism—in a broad, generic sense, encompassing any belief that the text is the baseline and that its authors’ expectations count for something—will become more orthodox than ever. And, like many participants at Jack’s wonderful conference, I suspect that his Living Originalism1 will hasten that trend: already, originalism’s conservative sentinels have predictably attempted to pocket the “originalism” part and to dismiss the “living” elements.2 However, a certain kind of conservative originalism, or perhaps several positions in originalism’s “logical space,”3 has or have become unsustainable—partly for theoretical, academic reasons, but in much larger part on account of changes in the broader political context in which originalism operates. Originalism will live, but its dominant forms will have a different tone and orientation. The originalism that in my estimation has outlived its usefulness has three central, interrelated features. First, it is Court-centered and preoccupied with legal interpretation. Second, it is positivist: judges must follow the constitutional rules because they are what they are and because the 1788 sovereign said so; any talk about why he, or we, or she the people said so is for interpretive purposes off limits. -
Sotomayor August 11 Mgdc NEED NEW GRAPHS
“Not that Smart”: Sonia Sotomayor and the Construction of Merit Guy-Uriel Charles, Daniel L. Chen & Mitu Gulati Duke University School of Law Abstract The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004-06, when Sotomayor was on the Second Circuit Court of Appeals, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted. “NOT THAT SMART”: SONIA SOTOMAYOR AND THE CONSTRUCTION OF MERIT Guy-Uriel Charles Daniel L. Chen Mitu Gulati1 I. “NOT NEARLY AS SMART AS SHE SEEMS TO THINK SHE IS” When President Barack Obama was considering whether to nominate to the Supreme Court Sonia Sotomayor, then a judge on the United States Court of Appeals for the Second Circuit, a prominent law professor, Laurence Tribe, wrote a letter to the President opposing Sotomayor’s potential nomination on the ground that “she’s not nearly as smart as she seems to think she is.”2 While Tribe’s assessment was intended as a private communication, others were saying something similar in public. -
{PDF EPUB} Supreme Disorder Judicial Nominations and The
Read Ebook {PDF EPUB} Supreme Disorder Judicial Nominations and the Politics of America's Highest Court by Ilya Shapiro Trump Should Add These People to His Supreme Court List | Opinion. Four years ago, one of the ways that then-presidential candidate Donald Trump disrupted the campaign was by publicly revealing a list of potential Supreme Court nominees, which he later expanded and pledged to pick from. Justice Antonin Scalia's passing in February 2016 had elevated the political potency of the Supreme Court in the election even more directly than would the usual debates over abortion, guns and other legal controversies. If Hillary Clinton had been able to appoint Scalia's successor, so many policy areas would be headed in substantially different directions. Instead, Trump produced a list of judges that held the Republican coalition together and, ultimately, attracted swing voters in key states. Now, having appointed two justices from that list, the president heads into a re-election campaign where the Supreme Court, and judicial appointments more broadly, is no less of an issue than it was four years ago. Justice Ruth Bader Ginsburg's recent cancer treatment is just the latest health concern this 87-year-old progressive icon has faced. She's obviously trying to outlive the Trump presidency, but another come-from-behind win this November would make that hard. And don't forget that Justice Stephen Breyer just turned 82—while Justice Clarence Thomas is 72, after serving nearly 30 years on the Court, and Justice Samuel Alito is 70 and may be getting restless after 15 years of his own service.