Executive Exposure: Government Secrecy, Constitutional Law, and Platforms for Judicial Elaboration

Samaha, Adam M.

doi:10.2139/ssrn.786646

Cited by 34 publications

(16 citation statements)

References 103 publications

(116 reference statements)

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“…101 Breyer has now developed a distinctive argument of his own, one that demonstrates the possibility of a nonoriginalist method that, while not eliminating discretion, is hardly a blank check to the judiciary. Breyer's originality lies in the effort to forge links among its three distinctive moving parts: an appreciation of "active liberty"…”

Section: Resultsmentioning

confidence: 99%

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Justice Breyer's Democratic Pragmatism

Sunstein¹,

Breyer²

2006

The Yale Law Journal

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Section: Resultsmentioning

confidence: 99%

“…Perhaps we are all pragmatists now, in the sense that we can agree that any theory of interpretation must pay close attention to the outcomes that it 101 See Scalia, supra note.…”

mentioning

confidence: 99%

Justice Breyer's Democratic Pragmatism

Sunstein¹,

Breyer²

2006

The Yale Law Journal

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“…First, in all minority majority cases lurks the simple possibility that "additional" judges would have voted such that the majority decision would not have carried the day: Since a minority majority constitutes less than a majority of the full court, the votes of the additional judges could, at least in theory, combine with the actual dissenting judges to form a majority of the full court. 101 Generally, the numbers in the table depend upon the remainder when the court size is divided by 4 (mathematically, the equivalent of the number "mod 4"). Every possible court size can be represented by 4N, 4N + 1, 4N + 2, or 4N + 3 where N is some positive integer.…”

Section: A Understanding the Problemmentioning

confidence: 99%

The Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements

Nash

2008

SSRN Journal

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“…Ann Oakley recharacterized gender roles as contingent social constructs, like caste, to repudiate naturalistic defenses of standard operating procedures. 101 There is also an association with studies of race as socially constructed rather than biologically meaningful. 102 As well, legal realists and their intellectual compatriots charted a similar path.…”

Section: A Personal and Politicalmentioning

confidence: 99%

What Good Is the Social Model of Disability?

Samaha¹

2007

The University of Chicago Law Review

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Although the social model is one way to define disability and a field of inquiry, it is not a disability policy. Deciding how to respond to "disability" in law and culture depends on a normative framework that cannot be supplied by the model. This framework might be analytical skills often become unhinged without a defensible normative goal. There is no way to set priorities, make unavoidable tradeoffs, or confront cost issues without a normative orientation; even legal formalists must admit this. Second, because of the gap between causation and policy, the stakes are lower for recognizing social forces in human disadvantage. Accepting a degree of social construction is not the end of a policy discussion and so it should be neither shocking nor frightening. It might be intellectually liberating. Third, the argument applies to all social construction observations, including those related to gender, race, sexual orientation, class, deviance, and law itself. For all of them, causation is separable from policy prescription. In fact the argument applies to all causation observations. None determine just outcomes. This is not to dismiss efforts to untangle causal forces in human affairs. The social model of disability, for its part, has been a source of revelation and inspiration for action. It can dispel uncritical assumptions that disadvantage is natural and necessary, which is no small feat. But we ought to know precisely what the model can and cannot accomplish.11 Then more can be done. We might achieve a sophisticated picture of the model's interaction with general normative frameworks, without relying on membership in the disability rights movement to do the work of argument.There is another oversight in the scholarship but this weakness underestimates the social model's implications. When the model is doing work within a normative framework, its insight can suggest a class of decisionmakers different from the class other perspectives suggest. This insight might require expertise in addition to or other than medical knowledge. In a way, disability rights advocates who constructed the social model were pointing toward this conclusion all along. Yet the connection between the model and institutional design, however mediated, has not been recognized in the law literature.Part I of this Article describes the social model of disability and some of its weaknesses. The model identifies a subset of all disadvantage related to physical or mental traits. Critics believe that this subset is small or that the model neglects 11 There is a connection here to the legal realists, who broke down the notion that prevailing forms of property and contract law were the natural order-but who were then willing to announce that the merits were open for debate. See below text accompanying notes 103-104. environment. For others, the causal picture is not so tilted. Moreover, those who use the label "social model" might embed implicit normative premises within the term, and they might believe a disabling environment is more easily or jus...

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Executive Exposure: Government Secrecy, Constitutional Law, and Platforms for Judicial Elaboration

Cited by 34 publications

References 103 publications

Justice Breyer's Democratic Pragmatism

Justice Breyer's Democratic Pragmatism

The Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements

What Good Is the Social Model of Disability?

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