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Tag: Supreme Court


The Paradoxical Impact of Scalia’s Campaign Against Legislative History

Stuart Minor Benjamin, Douglas B. Maggs Professor of Law, Duke Law School

Kristen M. Renberg, Ph.D. Candidate, Department of Political Science, Duke University & J.D. student, Duke Law School

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…

May 2020

A Tale of Two Courts

Deepa Das Acevedo

The world’s oldest democracy and the world’s largest democracy are admittedly different places. One is geographically expansive and demographically changing; it features a presidential system of governance and reflects a general assumption that the state ought to stay out of peoples’ lives wherever possible. The other is geographically smaller (though not small) and riven by…

Mar 2020


Politics and Authority in the U.S. Supreme Court

Joshua B. Fischman, Professor of Law, University of Virginia School of Law

Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent divide in the Court, however, which has been largely overlooked by scholars, the media, and the public. This second divide has arisen most often in cases involving the jury trial right, the…

Sep 2019


Justiciability, Federalism, and the Administrative State

Zachary D. Clopton

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a…

Sep 2018