Updates and Instruction - PS 4390 Special Topics on Judicial Interpretation - Spring 2008
Following is the list of readings. The list may be updated and modified as the class moves along during the term depending on which way we twist and turn. We may or may not read the material in the order presented in this list. Thus, come to class and keep up with instructions. You can access some of these items through the class web page (in which case you will see a link in the title), directly via the world wide web, or perhaps at the reserve desk in Walker Library.
§ For Tuesday, (1-6) and Thursday 1-8), read
the Scalia and Breyer lectures. These two lectures will be the foundation
for most of the discussion this term; so, read and take notes.
1. Willis, “Constitutional Interpretation: Distinctions without Differences.” [19]
2. Scalia, Antonin. “Common Law Courts in a Civil Law System: The Rôle of the U.S. Federal Courts in Interpreting the Constitution and Laws,” The Tanner Lectures on Human Values, delivered at Princeton University on March 8-9, 1995. [45]
3. Breyer, Stephen. "Our Democratic Constitution," The Tanner Lectures On Human Values delivered at Harvard University November 17, 18 and 19, 2004. [47]
4. Hamilton, Alexander. The Federalist Papers - Number 78 [5]
5. Story, Joseph, "Commentaries on the Constitution," [24]
6. Lieber, Francis, "Francis Lieber and the Interpretation of American Political Science," by James Farr [18]
7. Kent, James, "Commentaries on American Law," [20]
8. Holmes, Oliver W., Jr., "The Theory of Legal Interpretation," [5]
9. Pound, Roscoe, "Courts and Legislation," [22]
10. Cardozo, Benjamin N., "The Nature of the Judicial Process," [33]
11. Hand, Learned, "How Free is a Judge In Rendering Decisions"," [8]
12. Frankfurter, Felix, "Some Reflections on the Reading of Statutes," [16]
13. Llewellyn, Karl “Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed," 1950 Vanderbilt Law Review, v. 3, p. 395. [9]
14. Kennedy, Duncan, "Strategizing Strategic Behavior in Legal Interpretation," 1996 Utah Law Review 785. [30]
15. Dworkin, Ronald, "Law as Interpretation," [21]
16. Posner, Richard, "Statutory Interpretation in Classroom and Courtroom," [13]
17. Willis: "The Humpty Dumpty Rule." Click here for "Rules Thirteen" and go to page ??.
18. What
is the meaning of the words: “in any court”?
a. U.S.
v. Winson, 793 F.2d 754 (6th Cir. 1986) [4]
b. U.S.
v. Atkins, 872 F.2d 94 (4th Cir. 1989) [2]
c. U.S.
v. Concha, 233 F.3d 1249 (10th Cir. 2000) [4]
d. U.S. v. Gayle, 2003 U.S. App. LEXIS 26673 (2nd Cir.
2003) [6]
e. Small v. U.S., 544 U.S. 385 (2005)
[9]
19. What is the meaning of "any physical change?" New York v. E.P.A., 443 F.3d 880 (D.C. Cir. 2006)
20. What does "Federalism" mean?
a. Maryland v. Wirtz, 392 U.S. 183 (1968)
[13]
b. Nat. League of
Cities v. Usery 426 U.S. 423 (1976) [12]
c. Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985) [30]
21. Willis: Barak, "Purpose?" "A JUDGE ON JUDGING: THE ROLE OF A SUPREME COURT IN A DEMOCRACY," 116 Harvard Law Review 16 (2002)
22.
[Reserved]
23. Originalism—a Constitution dead on arrival?
Atkins v. Virginia, 536 U.S. 304
(2002) [10]
24. Textualism—words speak for themselves?
Maryland v. Craig, 497 U.S. 836 (1990)
[9]
25. Legislative Intent? Church of the
Holy Trinity v. U.S., 143 U.S. 457 (1892)
[4]
26. Economics?
a. Dunlop Tire & Rubber Corp. v. FMC Corp., 53 A.D. 2d 150, 385 N.Y.S.2d 971
(1976) [3]
b. Beck v. FMC Corp., 385 N.Y.S.2d 956 (1976), aff'd, N.Y.S.2d 1011 (1977)
[2]
27. What is the meaning of “guilty” embedded in a bankruptcy statute?
Perry v. Commerce Loan Co., 383 U.S. 392 (1966)
[10]
28. Are words static or migrant?
Boutilier v. I.N.S., 387 U.S. 118 (1967)
[10]
29. Willis, "The
Phenomenology of Pornography," 1997 Law and Philosophy Vol. 16, No. 2,
177-199. [23]
a. Shakespeare, William. Measure for Measure
b. Bowers v. Hardwick, 478 US 186 (1986)
c. Lawrence v. Texas, 539 U.S. 558 (2003)