Academic Round-Up

On a point that I have emphasized in the past on this blog (in discussions of cases like Hein v. Freedom of Religion Foundation), Christopher Peters (Wayne State University Law School) has posted a paper on SSRN that examines the practice on the Roberts Court of “Under-the-Table Overruling” of precedent, see here.  Although I do not necessarily agree with all of Peters’ analysis or even his selection of under-the-table-overruled precedents (i.e., I think there are better examples out there), Peters raises an extremely important observation that is worth watching as the Roberts Court matures.  One question that is discussed in this article is whether it serves the policy rationales behind stare decisis, as articulated by the Court in Casey v. Planned Parenthood, to undercut prior case law sub silentio.  A more fundamental question in my opinion is whether limiting or undercutting precedent is really consistent with judicial minimalism, a concern that Justice Scalia addressed in his dissent in Hein.

Bruce Winick (University of Miami School of Law) has posted “The Supreme Court’s Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier” on SSRN, see here.  Professor Winick argues that Roper, Atkins, and Kennedy v. Louisiana “give new meaning” to the proportionality requirement applied by the Court in the Eighth Amendment context.  In addition to extensively discussing all three of the aforementioned cases, Winick argues that the “next frontier” for the Court’s Eighth Amendment jurisprudence is to strike down the death penalty for offenders with a severe mental illness, though to do so on a case-by-case rather than blanket basis.

As an additional selection for this week, I would like to point out my own paper entitled “Justice Pierce Butler: A Supreme Technician,” which is forthcoming in the Vanderbilt Law Review.  A copy of the paper is available here.  In this paper, I examine why Justice Butler, who was one of the so-called “Four Horseman of the Apocalypse,” has been largely ignored in the scholarly literature.  Among other things, I conclude that Justice Butler was a true judicial minimalist, who was hesitant to overrule or even undercut precedent, and that he was interested in and often wrote in technical areas of the law such as public utilities and tax law.  The article is not meant to be a pure legal history piece and intentionally does not take into account all of the atmospherics during the period (though there is much history in it), but is instead meant to be a portrait of the man and the Justice, which is why there is so much emphasis in the piece on jurisprudential developments that Butler championed.   I am certainly open to any comments and/or suggestions as the paper is still in editing.