Sunday, November 24, 2013
my response to mark rush:
when i got to college as a teenager, i was happy to see that people were taking nozick's anarchy state and utopia seriously, since it was the sort of thing i'd been reading in high school and i figured i could be a philosophy major. and of course we covered kuhn. similarly when i got to law school, i was happy to see randy barnette's the forgotten 9th amendment on the shelves at the law library. randy's latest book is restoring the lost constitution. similarly one could point to the federalist society, and the work of the other members, along with randy,of the volokh conspiracy. volokh denies that there is a constitution-in-exile movement, but i think that's what it is. 50 years ago the trend was a living constitution, meaning whatever the judges said it meant. barnette and his ilk have tried to go back to the text to ground a new era of civil liberties and limits to government.
justice thomas is probably the biggest figure in this movement. his early dissents were considered a bit crazy, outsider stuff, but now it is not unusual for his vision to get 5 votes.
8:01 AM (14 hours ago)
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Happy Thanksgiving, all. I'm emailing to tap the community's knowledge on a topic that is slightly off-list. But, I'm also looking to tap other list serves as well, fyi. So, since this is not exactly election-law (tho it could be) I welcome off-list responses.
The transition, say, from Plessy to Brown came to mind. But this would certainly be a "slow motion revolution" that took place over 60 years. I thought perhaps that the Court's establishment of particular "rules" such as one person, one voter, the Miranda warnings, maybe the Carolene products footnote…could be identified as "revolutionary" moments in judicial thinking. The "switch in time" in NLRB v. J&L clearly constituted a sea-change. But, would we regard these events as truly "revolutionary"?
They did change the way the court operated and, therefore, how litigants behaved when litigating. Still--would you all regard these (or other examples) as mere decisions to change the rules, or are they akin to a "scientific" revolution in the law. We got hung up because none of the examples we kicked around involved bona fide "discovery of new or previously unknown information".
Does the law fit the Kuhnian model or does it move too slowly? Off line responses welcome. Thanks in advance for your thoughts.
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