When someone has a hammer, every problem risks looking like a nail. And when a legal scholar has a theory, every case risks becoming an application of it. With that disclaimer in mind, I think that Pulsifer v. United States, the Supreme Court’s recent statutory interpretation chestnut, nicely illustrates my view (elaborated here) that statutory interpretation is largely permissive as well as structured by three “basic rules.”  In brief, Pulsifer involved a statute whose literal text naturally invites a reading that would have helped many criminal defendants. But lots o ..read more

Last week, I had the honor of giving the keynote address at the National Conference of Constitutional Law Scholars, which was hosted by the University of Arizona James E. Rogers College of Law and its Rehnquist Center. My topic was “the One Big Question” currently shaping legal culture.  I’ve now posted my prepared remarks. Here’s the abstract I wrote for SSRN: Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in ..read more

Courts care about the difference between judgments and opinions, yet that boundary often blurs in significant ways. Consider the denotive language that prefaces most judicial opinions, such as “concurring,” “concurring in the judgment,” or “dissenting.” This kind of language not only indicates how a justice has voted with respect to the judgment in the case (judgment-denotive language), but also locates the judge’s opinion, if any, among other opinions (opinion-denotive language). In a legal system that relies on preclusive judgments and precedential opinions, denotive language is ke ..read more

In public remarks last year, Justice Kagan took a position on what the law is not. “If one judge dies or leaves a court, and another judge comes in, and all of a sudden the law changes on you,” Kagan argued, then, “you know, that just doesn’t seem a lot like law.” This basic view is widespread, even commonplace. Yet we all know that changes in judicial personnel do in fact yield major legal transformations. So while Kagan’s comment may reflect an attractive moral view of what the law ought to be, it doesn’t well describe what law actually is. In a draft article (“A Law Unto Oneself ..read more

How can Supreme Court ethics reform respect judicial independence but also have teeth? Ian Ayres and I have a proposed answer. Here are some excerpts from our post over at Balkanization: In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief ..read more

Clarity is often thought to be the cardinal virtue of judicial writing, but judges—like all authors—sometimes make use of strategic ambiguity, too. A fascinating example appeared near the end of the Supreme Court’s most recent term. Appropriately enough, the occasion was an exchange on the propriety of disparaging rhetoric.   Start with this passage, which appears near the end of the Chief Justice’s opinion for the Court in Biden v. Nebraska: It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper ..read more

Last week, I blogged excerpts from my forthcoming article over at the Volokh Conspiracy. Here are the posts: From Prof. Richard Re: The Remarkable Discourse on 303 Creative Was There Standing in 303 Creative? Did Factual Revelations Undermine 303 Creative? What Explains the Discourse on 303 Creative? Are We Living Through a Standing Realignment ..read more

The Supreme Court’s decision in Students for Fair Admissions v. Harvard will be remembered as a major decision striking at affirmative action in higher education, but the case’s footnotes tell an additional story—about the hollowness of the justices’ recusal practices.  Justice Ketanji Brown Jackson recused from the Harvard case because of her past service on that university’s Board of Overseers. Yet the first page of her dissenting opinion is prominently captioned with the Harvard dispute’s full name and case number. Citations to the Harvard case also appear at the top of ..read more

Readers may be interested in the below Call For Papers. CFP: Judicial Rhetoric: A Symposium April 5, 2024 University of Virginia School of Law In collaboration with Case Western Reserve University Judicial writing is a genre in flux. While court opinions remain both potent and controversial, many judges explicitly write for lay audiences or to entertain specialists. The resulting documents are quoted by the press, invoked at confirmation hearings, and memed in social media. Judges have been praised or blamed for cracking jokes, sharing hoary vignettes, and reciting song lyrics. Commentators ..read more

In deciding Dobbs v. Jackson Women’s Health, the Supreme Court issued a momentous constitutional ruling while suggesting that it lacked jurisdiction to do so. In particular, the Dobbs majority appears to state that the abortion providers who brought the case lacked standing to assert their patients’ abortion rights.  This point came up in a roundabout way. When making its case to overrule, the Court stated that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” As one salient example, the Court observed: “The Court’s a ..read more