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16 Sep 2020, 6:30 am
For the Symposium on Jack M. [read post]
4 Aug 2020, 9:01 pm
Thus, Yale Law Professor Alexander Bickel used Hamilton’s phrase ironically in the title of his influential 1962 book on the tension between judicial review and democracy. [read post]
5 Jul 2020, 9:05 pm
analysis As she provides information to the intake worker at the local food bank, she’s visibly distraught. [read post]
29 Jun 2020, 6:30 pm
I do not believe that Bickel discussed the APA, though my copy of The Least Dangerous Branch is in my office where I can't go right now. [read post]
25 Jun 2020, 6:30 am
Should they employ what Alexander Bickel once called the “passive virtues” and use various procedural and jurisdictional devices to delay articulation of constitutional norms, or should they push forward as soon as a genuine constitutional question is properly raised? [read post]
27 Apr 2020, 9:01 pm
But Bickel’s point was that voters should be given wide latitude to decide on the key issues of the day. [read post]
19 Mar 2020, 8:47 am
As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time. [read post]
19 Mar 2020, 8:47 am
As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time. [read post]
16 Mar 2020, 9:30 pm
As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time. [read post]
23 Dec 2019, 6:36 am
The style reminded me of reading Alexander Bickel’s classic text, The Passive Virtues, when I was in law school. [read post]
17 Dec 2019, 12:15 pm
Question: As a matter of originalist jurisprudence, do you think Alexander Bickel’s memorandum for Justice Felix Frankfurter in Brown v. [read post]
12 Nov 2019, 10:12 am
Alexander Bickel would say this is a passive virtue, but it looks more like the Court is conserving its political capital so it can use it in the future, such as when it solved the abortion issue. [read post]
1 Nov 2019, 6:30 am
” I embrace the label of liberal pluralism but wish to clarify that although we share some starting points, the approach I take is not to be confused with a full-throated defense of incrementalism, such as Cass Sunstein’s theory of minimalism, or Alexander Bickel’s enthusiastic support for the “passive virtues” in The Least Dangerous Branch. [read post]
4 Oct 2019, 4:38 pm
I am grateful to Jack Balkin for organizing this symposium and to the commenters on Rationing the Constitution for their close, careful, and generous engagement with my book. [read post]
1 Oct 2019, 9:01 pm
Writing in defense of most of the work of the Warren Court—which had been subject to relentless criticism even by its political allies—Ely explained that it is wrong to conceive of judicial review as necessarily undemocratic or even “counter-majoritarian” (as Alexander Bickel had conceived it).Ely explained that often judicial review can be “representation reinforcing” by striking down laws or practices that are themselves undemocratic. [read post]
19 Sep 2019, 5:30 am
Consider Bickel’s recommendation that a Court concerned with capacity should decide cases on narrow grounds rather than broad ones, and that it should time its interventions in a way that is sensitive to politics unfolding in other branches (in order to not replicate or displace their work). [read post]
14 Sep 2019, 6:00 am
For the symposium on Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).Adrian Vermuele Andrew Coan’s book develops seamlessly out of a venerable line of work that considers constitutional theory, and legal theory generally, in light of the capacities of judges and the resource constraints under which they labor, especially constraints of time, attention, information, and… [read post]
28 Jun 2019, 6:30 am
For the symposium on Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019).Fidelity and Constraintis a dazzling book-- crammed full of interesting ideas and a wealth of remarkable reinterpretations of the Constitutional canon-- written in an engaging and accessible style.There is so much packed into this book, in fact, that I will not be able to discuss all of its key ideas in a single blog post. [read post]
26 Jun 2019, 6:30 am
Gerald Gunther said much the same about Bickel's theory of passive virtues, which was in part a theory of fidelity to role. [read post]
15 Jun 2019, 8:00 am
“Mel” Bradford; Richard Weaver), clerics and theologians (including John Courtney Murray, SJ), and law school based legal academic constitutional theorists (William Winslow Crosskey; Philip Kurland; Alexander Bickel, Herbert Wechsler; Raoul Berger; Robert Bork). [read post]
