Harvard Law Review

Online Forum

 

Responding to Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011).

Is Dred Scott Really the Worst Opinion of All Time? Why Prigg Is Worse Than Dred Scott (But Is Likely to Stay Out of the “Anticanon”)

Sanford Levinson :: In The Anticanon, Professor Jamal Greene examines how a particular set of cases came to constitute the “anticanon” of constitutional law, that is, cases whose names can be spoken only to be condemned.  In this response, Professor Sanford Levinson questions whether the vitriol visited upon anticanonical cases, whether by lawyers or the laity, is necessarily defensible.  Levinson suggests that anticanonical cases may be indistinguishable from cases accorded far greater respect (and, indeed, treated as “canonical” exemplars of legal craft).  Some anticanonical cases may have genuine merit and lessons worth drawing on.  More particularly, Levinson asks why Prigg v. Pennsylvania, written by Justice Joseph Story, suffered neither the public obloquy nor the condemnation by professional legal academics directed at Chief Justice Taney for his opinion in Dred Scott, even though Greene notes that Prigg may be the worst Supreme Court decision of all time and Dred Scott, according to Levinson, contains potentially inspirational passages.  We want to believe that the canon and anticanon are separated by an impermeable wall.  But what if they are not? READ MORE

 

Responding to Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).

An Original Take on Originalism

Christopher Slobogin :: In An Equilibrium-Adjustment Theory of the Fourth Amendment, Professor Orin Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant.  In this response, Professor Christopher Slobogin acknowledges that this equilibrium-adjustment theory is elegant and, because it rests on a relatively “neutral” historical foundation, might be attractive to judges and scholars from different perspectives.  However, contrary to Kerr’s assertion, Slobogin argues that equilibrium adjustment does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today.  The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences.  At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology. READ MORE

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