Looking for a good overview of the left-wing approach to law
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  Looking for a good overview of the left-wing approach to law
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Author Topic: Looking for a good overview of the left-wing approach to law  (Read 417 times)
Mister Mets
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« on: July 08, 2020, 11:48:03 AM »

In a lot of the discussions about the Supreme Court rulings, I haven't seen much explanation about the rationale of the liberal position(s). The subtext sometimes seems to be that the court should use whatever pretext possible to get the best policy outcomes, but that doesn't seem correct. So I'm asking if anyone can recommend a good primer on the left-wing approach to the law.

I can appreciate that there may not be one left-wing approach, just as the approaches tied to conservatism: originalism and textualism have some differences. But if anyone has a good online source (video, podcast, article) explaining left-wing judicial philosophies, I would like to read it.

Does anyone have a recommendation?
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Brother Jonathan
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« Reply #1 on: July 08, 2020, 07:04:11 PM »

This is a pretty broad overview of the subject by David Strauss, and I think it largely reflects the modern legal thinking on the left

https://www.law.uchicago.edu/news/living-constitution

This is a 1988 article by Andrzej Rapaczynski provides a good overview of some key tenets of a more restrained sort of left-wing interpretation. It focuses mainly on the 9th Amendment, but it discusses the Constitution in general as well

https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3215&context=faculty_scholarship

There is also this article by Thomas C. Grey, which makes the argument for a more pragmatic and, in essence, a sort of common law Constitution. This one is a bit more heterodox by modern liberal standards but still might be helpful

https://core.ac.uk/download/pdf/217424961.pdf

Justices Scalia and Breyer used to debate Constitutional interpretation in public quite a bit, and it's pretty easy to find videos of them. Here is one from C-SPAN. I generally find that the contrast between the two helps clarify the points both are making.

https://www.c-span.org/video/?292678-1/justices-breyer-scalia-constitution-forum

Stephen Breyer has also written a few books on the subject, and those might be worth looking into as well.

I hope something here can be helpful.

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Mister Mets
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« Reply #2 on: July 09, 2020, 01:37:35 PM »

This is a pretty broad overview of the subject by David Strauss, and I think it largely reflects the modern legal thinking on the left

https://www.law.uchicago.edu/news/living-constitution

This is a 1988 article by Andrzej Rapaczynski provides a good overview of some key tenets of a more restrained sort of left-wing interpretation. It focuses mainly on the 9th Amendment, but it discusses the Constitution in general as well

https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3215&context=faculty_scholarship

There is also this article by Thomas C. Grey, which makes the argument for a more pragmatic and, in essence, a sort of common law Constitution. This one is a bit more heterodox by modern liberal standards but still might be helpful

https://core.ac.uk/download/pdf/217424961.pdf

Justices Scalia and Breyer used to debate Constitutional interpretation in public quite a bit, and it's pretty easy to find videos of them. Here is one from C-SPAN. I generally find that the contrast between the two helps clarify the points both are making.

https://www.c-span.org/video/?292678-1/justices-breyer-scalia-constitution-forum

Stephen Breyer has also written a few books on the subject, and those might be worth looking into as well.

I hope something here can be helpful.


This was quite helpful. Thank you.

One further question is how the living constitution theory applies to things outside the constitution.

On the conservative side, the arguments on originalism and textualism aren't limited to the constitution, but in determining the meaning of various statutes (Gorsuch's majority opinion on employment discrimination was based on his understanding of the text of the 1964 Civil Rights Act.)

How does the living constitution approach consider legislation? Is legislation also living, or is that something that isn't the role of the courts the way interpreting a document that hasn't been formally amended during many of our lifetimes is?
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Brother Jonathan
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« Reply #3 on: July 11, 2020, 11:33:57 PM »

This is a pretty broad overview of the subject by David Strauss, and I think it largely reflects the modern legal thinking on the left

https://www.law.uchicago.edu/news/living-constitution

This is a 1988 article by Andrzej Rapaczynski provides a good overview of some key tenets of a more restrained sort of left-wing interpretation. It focuses mainly on the 9th Amendment, but it discusses the Constitution in general as well

https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3215&context=faculty_scholarship

There is also this article by Thomas C. Grey, which makes the argument for a more pragmatic and, in essence, a sort of common law Constitution. This one is a bit more heterodox by modern liberal standards but still might be helpful

https://core.ac.uk/download/pdf/217424961.pdf

Justices Scalia and Breyer used to debate Constitutional interpretation in public quite a bit, and it's pretty easy to find videos of them. Here is one from C-SPAN. I generally find that the contrast between the two helps clarify the points both are making.

https://www.c-span.org/video/?292678-1/justices-breyer-scalia-constitution-forum

Stephen Breyer has also written a few books on the subject, and those might be worth looking into as well.

I hope something here can be helpful.


This was quite helpful. Thank you.

One further question is how the living constitution theory applies to things outside the constitution.

On the conservative side, the arguments on originalism and textualism aren't limited to the constitution, but in determining the meaning of various statutes (Gorsuch's majority opinion on employment discrimination was based on his understanding of the text of the 1964 Civil Rights Act.)

How does the living constitution approach consider legislation? Is legislation also living, or is that something that isn't the role of the courts the way interpreting a document that hasn't been formally amended during many of our lifetimes is?

I'm not entirely sure, to be honest. Generally, it seems that liberal Judges have a really wide variety of opinions of how to interpret regular statues. Recently, it seems their is an increasing trend toward plain reading of laws, as we saw with the liberal Justices in Bostock, but in general I think that the approach to regular statues are all over the place. Maybe you could say they generally focus more on outcomes and prudential/policy considerations that textualists, and that to this end they often try to "refine" statutes and keep them up to date. So to some extent they would say statues are living, but not to the degree they would say the Constitution is.
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