A Manipulative Jurisprudence: Unprincipled and Expedient Reasoning

2020 ◽  
pp. 137-162
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
United States ◽  
Affirmative Action ◽  
Common Law ◽  
Voting Rights Act ◽  
James Madison ◽  
Federalist Papers ◽  
First Case ◽  
Military Contractors ◽  
Shelby County ◽  
Eleventh Amendment

This chapter offers a more detailed analysis of some of Justice Antonin Scalia’s most striking inconsistencies. Its first section addresses Scalia’s use of James Madison as a principal and particularly prestigious originalist source, especially his essays in the Federalist Papers. The chapter examines in particular his inconsistent uses of Madison’s writings in such cases as United States v. Windsor and Morrison v. Olson and in his attitude toward affirmative action and Madison’s idea of the “extended republic” in his decisions on the Eleventh Amendment. The chapter shows that he used Madison when his writings supported Scalia’s own views but ignored him when they contradicted those views. The chapter’s second section examines two of Scalia’s most dubious actions on the Court, joining the five-justice conservative majority in Shelby County v. Holder and writing a deeply flawed opinion for the Court in Boyle v. United Technologies. The chapter argues that the two cases show Scalia at his most inconsistent, contradictory, and willful in serving his ideological and political goals, in the first case voiding a critical provision of the Voting Rights Act of 1965 and in the second expanding federal common law to protect military contractors from tort suits.

The Dialogic Community: Education, Leadership, and Partcipation in James Madison's Thought

1990 ◽  
Vol 52 (1) ◽  
pp. 32-63
Author(s):  
Bradley Kent Carter ◽  
Joseph F. Kobylka
Keyword(s):  
United States ◽  
Community Education ◽  
Education Leadership ◽  
Shared Values ◽  
James Madison ◽  
Public Dialogue ◽  
Community Or ◽  
Federalist Papers

Some interpretations of James Madison tend to treat him as an enemy of “community,” or as indifferent to that concept. These interpretations also tend to base their argument on selected readings from theFederalist Papers. This approach is mistaken because it relies on a part of the Madisonian corpus to define the whole of the Virginian's thought. This mistake leads to a distortion of Madison's treatment of community. Close scrutiny of Madison's life, letters, and essays reveals a theorist-politician committed to building and nurturing community in the new United States, a community linked across time and miles by shared values, common institutions, and ongoing public dialogue.

scholarly journals Book Review | George Will’s Conservatism and Democracy in Crisis

2020 ◽  
Vol 9 (2) ◽  
Keyword(s):  
United States ◽  
Direct Democracy ◽  
The United States ◽  
James Madison ◽  
American Government ◽  
Federalist Papers ◽  
The Federalist ◽  
The Difference ◽  
The Government ◽  
The Federalist Papers

Americans typically view the United States as a democracy and are rightly proud of that. Of course, as those of a more precise nature, along with smug college students enrolled in introductory American government classes, are quick to point out, the United States is technically a republic. This is a bit too clever by half since James Madison, in The Federalist Papers, defined a republic the way most people think of a democracy—a system of representative government with elections: “[The]… difference between a Democracy and a Republic are, first the delegation of the Government, in the latter, to a small number of citizens elected by the rest.” What the framers thought of as democracy is today referred to as direct democracy, the belief that citizens should have more direct control over governing. The Athenian assembly was what the framers, Madison in particular, saw as the paragon of direct democracy—and as quite dangerous. While direct democracy has its champions, most Americans equate democracy with electing officials to do the business of government.

scholarly journals Rule by the Few in the Federalist Papers: An Examination of the Aristocratic Preference of Publius

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Carl M. Felice
Keyword(s):  
United States ◽  
United States Supreme Court ◽  
The United States ◽  
American People ◽  
Alexander Hamilton ◽  
James Madison ◽  
Federalist Papers ◽  
The Federalist ◽  
The Government ◽  
The Federalist Papers

AbstractThe Federalist Papers are a set of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay during the founding era of the United States, with the purpose of persuading the states to adopt the Constitution as the replacement for the Articles of Confederation. The Papers were some of the most impressive political writings of the time, and are still cited frequently today by the United States Supreme Court. The arguments set forth in the Papers attempted to defend the Constitution's aristocratic characteristics against its opponents, the Anti-Federalists, while also attempting to normalize an anti-democratic, representative form of government in the minds of the American people. The clever advocacy and skillful rhetoric employed by Hamilton, Madison, and Jay led to the eventual ratification of the Constitution, and consequently the creation of the most powerful and prosperous nation on the planet. This paper examines the differences between the traditional forms of government, the political philosophies of the Papers’ authors, the anti-democratic, aristocratic nature of the government proposed by the Constitution, and the arguments for and against its adoption, as articulated in the Papers and various other writings.

THE LAST STAND?

2016 ◽  
Vol 13 (1) ◽  
pp. 25-44 ◽  
Author(s):  
Desmond S. King ◽  
Rogers M. Smith
Keyword(s):  
United States ◽  
African Americans ◽  
United States Supreme Court ◽  
Voting Rights ◽  
The United States ◽  
United States Supreme ◽  
Voting Rights Act ◽  
Shelby County ◽  
To Come ◽  
Over Time

AbstractIn 2013, the United States Supreme Court decided Shelby County v. Holder, which invalidated Section 4(b) of the Voting Rights Act of 1965. The ruling is part of longstanding efforts to maintain American institutions that have provided wide-ranging benefits to White citizens, including disproportionate political power. Over time, such efforts are likely to fail to prevent significant increases in political gains for African Americans, Latinos, and other minority citizens. But they threaten to foster severe conflicts in American politics for years to come.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common
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