Antonin Scalia–A Giant of Jurisprudence

Scalia-1993

Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.

More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body.  Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.

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Posner’s Tyranny of Expertise

Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.

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Tom Smith on Legal Realism and Formalism

Tom has a characteristically funny and insightful post on legal realism and formalism.  Here is an excerpt: Of course every legal system, if it is a legal system, is to a degree mechanical and if it's not just a mathematical exercise, to a degree not.  A twenty year old pickup, that wiggles and squeaks a great deal, is still a mechanical system.  That it does a great deal it can do in part because a lot of it is not rigid, hardly makes it less mechanical.  Part of how it works may not be explicable in terms of standard mechanics.  You…

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